Wednesday, 05 October 2016
Would you like to be able to give your clients an example of why a registered migration agent can be invaluable to the process of preparing a visa application?
Of why the application process is “not as simple and straightforward as it seems”?
Of why that old truism that: “the devil is in the details” is actually a truism that is true when it comes to the Australian migration legislation?
And that for that reason, getting the assistance of a registered migration agent is really important?
Well, if you’d like to have such a case to point to, there was a decision handed down by the Tribunal in mid-September that might just be perfect:1505748 (Migration) (2016) AATA 4399 (15 September 2016).
The factual background of this case shows why the migration legislation can pose traps, pitfalls and hidden landmines for the unwary and why something that may seem to be “as obvious as day” really isn’t when the details of the legislation are examined.
The case involved an application for a Skilled (Independent) visa, Subclass 189.
The applicant was a citizen of New Zealand who was in Australia under the authority of a Special Category visa (Subclass 444). He and his family had been living in Victoria for several years, and they (quite reasonably!) wished to “regularise” their status and become permanent residents of Australia.
The applicant was an architect. In 2010, he was issued a formal skills assessment by the Architects Accreditation Council of Australia (AACA). The skills assessment from the AACA stated that the applicant’s architectural qualifications were academically equivalent to an accredited professional architecture qualification from a recognized school of architecture in Australia. The letter from the AACA did not indicate that there was an “expiry date” on the positive skills assessment.
The letter from the AACA also advised the applicant that he was eligible to take the Architectural Practice Examination to become registered with the Architects Registration Board in Victoria. The applicant had sat for and passed this exam and had become registered. He became a senior project architect for an architectural firm in Victoria.
In late November 2014, the applicant was invited to apply for the 189 visa.
Was it smooth sailing? Was he home free, and on a safe pathway to getting the visa, and the grant of permanent residency in Australia?
No, he wasn’t!
And why not (you may ask!)
The answer is that the applicant was not able to satisfy regulation 189.212. This regulation provides that at the time of the application for the visa, there must have been a positive assessment of the applicant’s skills as being suitable for the applicant’s nominated skilled occupation by the relevant skills assessment authority. Subregulation 189.212(d) provides that if (as was the situation in this case) the skills assessment does not specify a period for which the skills assessment is valid, then no more than 3 years may have passed since the date of the assessment.
The problem for the applicant? The positive skills assessment from the AACA was more than 3 years old at the time that he was invited to apply for the 189 visa. The skills assessment letter was issued to the applicant in August 2010, and the invitation to apply for the visa was issued to him in November 2014.
So the applicant was unable to satisfy regulation 189.212.
There is a bit of a twist to this story.
In May 2015 (before the Tribunal heard and decided his case) the applicant was issued another positive skills assessment as an architect by the AACA.
So the story was, as acknowledged by the Tribunal, that the applicant had received 2 positive skills assessments for his nominated occupation (one before, and one after he was issued an invitation to apply for the 189 visa).
No, the second skills assessment was not a life preserver!
The reason was that at the time that the applicant was issued an invitation to apply for the 189 visa, the original skills assessment that had been done in 2010 was no longer valid because it had been issued more than 3 years earlier, and the later positive skills assessment , issued in 2015, was not yet in force.
What about the fact that the applicant had successfully fulfilled the requirements to become registered as an architect with the Architects Registration Board of Victoria?
This too was unavailing, because the Architects Registration Board of Victoria is not specified as a relevant assessing authority, and therefore the fact that the applicant held a certificate of registration with that Board could not be considered by the Tribunal as being a positive skills assessment for the purpose of meeting the requirements of 189.212.
So there you have it! A person who was twice assessed by the relevant skills assessment authority as having the appropriate skills for his nominated occupation, and who was in fact registered by the relevant state registration authority, nonetheless did not satisfy the criteria for the grant of the 189 visa (because his original positive skills assessment had become invalid due to the passage of time).
If there is any silver lining to this case, it is that the applicant and his family can remain in Australia indefinitely under their Subclass 444 visas. And that, if so inclined, the applicant could re-apply for the 189 visa and would not be prevented from re-applying by the Section 48 bar.
But the bad news? The visa application charges for himself, his wife and children – torched.
Ditto for the fees paid to the Tribunal for the merits review application.
Need any more ammunition to convince a prospective client that there is great benefit to be derived from engaging a registered migration agent?
Courtesy of Michael Arch from Migration Alliance