1411025 (Migration)

[2015] AATA 3005

1411025 (Migration) [2015] AATA 3005 (2 July 2015)

DECISION RECORD

APPLICANT:  Miss Jane Agutu Mulumba

MRT CASE NUMBER:  1411025

DIBP REFERENCE(S):  Bcc2013/1346607

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:2 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 02 July 2015 at 3:50pm

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 Immigration on 3 June 2014 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 August 2013. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visa because the applicant did not satisfy cl.485. 224 of Schedule 2 to the Regulations because there was no evidence that the applicant’s skills for her nominated ‘skilled occupation’ had been assessed as suitable by the ‘relevant assessing authority’.

4. The applicant appeared before the Tribunal on 18 November 2014 to give evidence and present arguments. 

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

Had the applicant applied for a relevant skills assessment?

1. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

2. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.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 this purpose is Legislative Instrument IMMI 14/049.

3. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). The relevant instrument for this purpose is also Legislative Instrument IMMI 14/049.

4. On the evidence before the Tribunal, the applicant nominated the occupation of Management Accountant (ANZSCO code 221112), which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is CPA/ICAA/IPA.

5. In her visa application the applicant claimed to have applied for her skills assessment on 28 August 2013 and provided an invoice number 100052539. This is confirmed on the Department’s file by a receipt from CPA Australia, with the same invoice number, demonstrating that on 28 August 2013 the applicant had paid a “Skill Migration Assessment fee” (sic).  On this basis the Tribunal is satisfied that the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority.

6. The applicant therefore meets the requirements of cl.485.223.

Has the applicant been assessed as suitable for the nominated occupation?

1. Clause 485.224 requires that the applicant’s skills for the nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation (cl.485.224(1)). There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

2. As reflected in the delegate’s decision, a copy of which was provided with the application for review, and as confirmed by correspondence from CPA dated 7 November 2013, the CPA skills assessment application was unsuccessful. Further correspondence from CPA indicated that the applicant was able to apply for an updated assessment for migration purposes for a period of two years from this initial assessment. Prior to the hearing the applicant wrote to the Tribunal advising that she had undertaken the additional subjects necessary for her skills assessment and her final exam was to be held on 3 December 2014.

3. At the hearing she told the Tribunal that she had failed to pass one subject and was now enrolled in the necessary additional subjects and would complete them in June 2015. She said that CPA would be able to provide her with the updated skills assessment immediately on satisfactory completion of those subjects. The Tribunal allowed the applicant an additional period of time in which to provide confirmation of this from the CPA.

4. On 4 June 2015 the CPA provided the applicant with a successful skills assessment, a copy of which has been provided to and verified by the Tribunal. 

5. As the applicant’s skills have been assessed by a relevant assessing authority as suitable for the nominated skilled occupation, the applicant satisfies the requirements of cl.485.224(1).

How and where was the qualification obtained?

1. If the applicant’s skills were assessed 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.485.224(2)). ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03).

2. Information in the visa and review applications, and on the Department’s file from the Provider Registration and International Student Management System (PRISMS) database maintained online by the Department of Education, confirms that during the period of 28 February 2011 to 6 July 2013 the applicant completed a Bachelor of Commerce at Swinburne University of Technology in Melbourne, Victoria. The Tribunal accepts on the basis of this evidence that the applicant's course was CRICOS registered as defined under r.1.03 at the time it was undertaken by the applicant.

3. Departmental movement records confirm that the applicant held a student visa during her relevant periods of study. The Tribunal therefore finds that the applicant’s skills assessment was made on the basis of a qualification obtained in Australia whilst the applicant was the holder of a student visa.

4. The Tribunal further finds that the qualifications were obtained as a result of studying registered course. Therefore, the applicant satisfies the requirements of cl.485.224(2).

5. Given the above, the Tribunal finds that the applicant meets the requirements of cl.485.224.

6. It follows that the applicant meets the requirements of cl.485.224.

CONCLUSION

1. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.223 and 485.224 of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

   ·cl.485.223 of Schedule 2 to the Regulations; and

   ·cl.485.224 of Schedule 2 to the Regulations.

Mary-Ann Cooper
Member