Vahora (Migration)

[2019] AATA 5906

Vahora (Migration) [2019] AATA 5906 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kausar Soyabmahamad Vahora
Mr Soyabmahamad Salimbhai Vahora
Mr Muhammadyaeesh Vahora

CASE NUMBER:  1913721

HOME AFFAIRS REFERENCE(S):          BCC2018/5185427

MEMBER:Warren Stooke AM

DATE:17 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) Subclass 190 visas.

Statement made on 17 December 2019 at 3:15pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) – Subclass 190 Skilled Nominated – skills assessment – assessment expired – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 190.212, 190.311

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 May 2019 to refuse to grant the applicants visas under s.65 of the Migration Act 1958 (the Act). This is a points based visa 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 15 October 2018 and applied for the visa on 20 November 2018. The criteria for the grant of a Subclass 190 - Skilled - Nominated visa are set out in Part 190 - Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicants appeared before the Tribunal on 13 December 2019 to give evidence and present arguments.

4. The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision. In this regard, the applicant stated that she understood that the reason for the refusal was because the decision said she had not given the evidence of a Skills Assessment given that the original skills assessment had expired prior to application.

5. The applicant advised the Tribunal that she had provided a copy of the delegate’s decision to the Tribunal with her application.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether at the time the applicant was invited to apply for the visa she had been assessed by the relevant assessing authority as having skills suitable to the applicant’s nominated occupation.

9. The Skilled – Nominated (Permanent) (Class SN) subclass 190 visa is a permanent visa designed for skilled applicants who submit an expression of interest (EoI) in Skill Select to the Department and who then receive an invitation to apply for the visa.

10. Applicants seeking to satisfy the primary criteria for subclass 190 must have been invited to apply for the visa. The applicant is required to achieve a specified qualifying score on a points assessment under Schedule 6D and to be nominated by a State or Territory government agency. Applicants will require evidence that at the time of the invitation to apply for the visa they had qualifications and English language of a prescribed standard.

11. The criteria for a subclass 190 visa are set out in Schedule 2 to the Regulations. Relevantly to this matter, a primary criterion to be met is cl.190.212(1) which 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.

12. The applicant is a 29 year old from India, who is residing with her husband and 5 year old son.

13. The applicant stated that she is currently working in aged care on a part-time basis for two days a week to fit in with her son’s hours at pre-school.

14. The applicant stated that her husband is working in a factory where he is engaged in picking and packing.

15. The applicant gave evidence that she has a Master of IT from Ballarat University, which is now Federation University.

16. The applicant gave evidence that the Australian Computing Society provided her with a skills assessment, as a Software Engineer – ANZSCO Code 261313 on 5 September 2016, which was valid for a period of two years. [Tribunal File: Folio 43-44]

17. The applicant stated that she thought the assessment would be valid for three years and submitted her application on 20 November 2018.

18. The applicant gave evidence that she accepted the skill assessment of 5 September 2016 expired prior to lodging her application for the visa, but thought the assessment would be valid for immigration purposes on the basis that the Department had issued an invitation on 15 October 2018, which was after the expiry date of the assessment.

19. The applicant stated that she applied for a second assessment after the lodgement of her application for a new skills assessment, which was provided on 3 July 2019. [Tribunal File: Folio 45-46]

20. On the basis of the evidence provided by the applicant, the Tribunal finds that the applicant applied for an assessment of her skills through the Australian Computing Society on 5 September 2016, which effectively expired on 4 September 2018 and prior to the applicant lodging her application of 20 November 2018.

21. The Tribunal therefore finds that at the time of invitation on 15 October 2018, the applicant did not have a valid skills assessment from the relevant assessing authority, the Australian Computing Society.

22. The plain wording ofcl.190.212specifies that it is a requirement at the time of invitation, that the relevant assessing authority had assessed the applicant’s skills as suitable. It is this specific temporal requirement contained in cl.190.212that is not met, despite the applicant ultimately receiving a positive assessment from ACS at a later date on 3 July 2019.

23. The Tribunal acknowledges that the applicant failed to appreciate what was required to apply for the Subclass 190 visa. The Tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could compromise access to a subclass 190 visa application, particularly given that the applicant has the apparent skills for the assessed vocation for periods prior to and subsequent to the date of application. However, the Tribunal must find that as at the time of invitation to apply for the visa, the relevant assessing authority had not assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation and that the applicant does not satisfy cl.190.212. The applicable law does not give the Tribunal any power to waive or overlook the need to meet this requirement.

24. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 190 visa. As this is the only relevant subclass in this case, the decision under review must be affirmed.

25. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second and third applicants do not satisfy the secondary criteria for a grant of a visa, as per cl.190.311 on the basis that they are not members of a family unit of a person, who holds a Subclass 190 visa.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) Subclass 190 visas.

    Warren Stooke AM
    Member