Tian (Migration)

[2023] AATA 1709

Tian (Migration) [2023] AATA 1709 (29 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wendi Tian
Miss Zilin Pan

CASE NUMBER:  2012393

HOME AFFAIRS REFERENCE(S):          BCC2020/1413267

MEMBER:Alison Mercer

DATE:29 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 29 May 2023 at 3:41pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – applicant has not provided the information within the prescribed period – Medical Laboratory Scientist – positive skills assessment not provided – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 1.03, 1.15, 2.26B, Schedule 2, cl 189.222

CASES
Hasran v MIAC [2010] FCAFC 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2020 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (subclass 189) (Skilled – Independent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 13 March 2020 and applied for the visa on 22 April 2020 nominating the skilled occupation of Medical Laboratory Scientist.

3. The criteria for the grant of a subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas because the applicant did not satisfy cl 189.222, which required him to have a positive skills assessment for his nominated occupation, obtained prior to being invited to apply for the visa. The delegate found that although the applicant claimed in his online application that he had obtained a positive skills assessment on 10 January 2018, he failed to provide it despite being requested to do so.

4. The delegate therefore refused to grant the applicant a subclass 189 visa, and also refused to grant the second named applicant (the applicant’s partner) a subclass 189 visa as she did not satisfy the secondary visa criteria requiring her to be a member of the family unit of a person who held a subclass 189 visa, and there was no evidence that she met the primary visa criteria in her own right.

5. The Tribunal received a review application from the applicants on 3 August 2020, which was accompanied by a copy of the delegate’s decision.

6. On 12 May 2023, the Tribunal wrote to the applicants to invite them, pursuant to s.359(2) of the Act, to provide information demonstrating information that the applicant had obtained a positive skills assessment as a Medical Laboratory Scientist at the time that he was invited to apply for the subclass 189 visa. The Tribunal noted that the requirement that cl.189.222 was a time of application requirement; that is, cl.189.222 could not be satisfied unless the applicant had a positive skills assessment as a Medical Laboratory Scientist at the time he was invited to make his subclass 189 visa prior to 22 April 2020, and that one obtained subsequently would not satisfy cl.189.222. The Tribunal also noted that any skills assessment provided could not have been obtained for the purposes of a subclass 485 (Temporary Graduate) visa.

7. The Tribunal requested that the applicants provide this information (or request an extension of time to do so) by 26 May 2023, advising that if they failed to do so, they would lose their entitlement to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence.

8. The Tribunal did not receive the requested information by 26 May 2023. Nor did it receive a request for an extension of time by that date. It has received no further communications from the applicants to date.

9. The Tribunal is satisfied that its s.359(2) letter of 12 May 2023 was sent to the email address nominated by the applicants in their review application. There is no evidence from the Tribunal’s records that its email was not delivered or was undeliverable.

10. The applicants have not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal has considered whether to defer its decision for a further period, but – in view of the confined nature of the criterion in dispute, the fact that the Tribunal sent the applicants a s.359(2) letter requesting them to provide information about the criterion in dispute, and the fact that the applicants did not respond to the s.359(2) letter despite being advised that they would lose their entitlement to a hearing – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Suitable Skills Assessment

13. Clause 189.222(1) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa.

14. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under reg 2.26B of the Regulations (reg 1.03). ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. The relevant instrument for these purposes is Legislative Instrument IMMI 19/051.

15. If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course: cl 189.222(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students (reg 1.03).

16. As noted above, the Tribunal is satisfied that the applicant nominated the occupation of Medical Laboratory Scientist (ANZSCO code 234611), and that IMMI 19/051 contains this occupation and indicates that the relevant assessing authority is the Australian Institute of Medical Science (AIMS).

17. Although the applicant claimed to have a positive skills assessment for his nominated occupation from AIMS dated 10 January 2018, prior to being invited to apply for the visa, he has not provide any documentary evidence to corroborate this claim. This is despite being requested to do so by both the Department and the Tribunal.

18. On the basis of these findings, the Tribunal finds that the applicant does not satisfy cl 189.222(1) and therefore does not meet cl.189.222 as a whole.

19. It follows that the applicant does not satisfy the criteria for the grant of a subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

20. The Tribunal must also affirm the decision to refuse to grant the second named applicant a subclass 189 visa, as she cannot satisfy the secondary visa criteria requiring her to be a member of the family unit of a person who holds a subclass 189 visa, and there is no evidence that she meets the primary visa criteria in her own right.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

    Alison Mercer
    Member