1503872 (Migration)

[2015] AATA 3370

1503872 (Migration) [2015] AATA 3370 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weinan Bu

CASE NUMBER:  1503872

DIBP REFERENCE(S):  BCC2015/53854

MEMBER:Don Lucas

DATE:1 September 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.485.224 of Schedule 2 to the Regulations.

Statement made on 01 September 2015 at 1:29pm

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 March 2015 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 7 January 2015. Visa Class VC contains Subclass 485. 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 the applicant had not demonstrated that his skills for the nominated skilled occupation had been assessed during the last three years by a relevant assessing authority as suitable for that occupation.

4. The applicant appeared before the Tribunal on 19 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include 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.

8. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A).

9. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course: cl.485.224(2).

10. On the visa application form submitted electronically on 7 January 2015, under the heading Applicant Skills Assessment and next to Nominated Occupation, there appears “Electronics Engineer”. The ANZSCO lists this occupation within unit group 2334, code 233411.

11. During the course of processing, on 2 February 2015 the Department requested the applicant to provide evidence that his qualifications had been assessed by the relevant assessing authority for the nominated occupation.

12. On 25 February 2015, the applicant through his representative submitted a variety of documents. Relevantly, these included a form 1023, together with an unofficial confirmation dated 20 February 2015 that the applicant’s skills had been assessed by Engineers Australia (EA) as suitable for the occupation of Telecommunications Engineer, ANZSCO 263311. Subsequently, on 27 February 2015 the applicant submitted the official EA skills assessment in the occupation of Telecommunications Engineer which was dated 23 February 2015.

13. In the form 1023, the applicant stated that the incorrect information he had provided was “Electronics Engineer” on 3 July 2014 and the correct details were “Telecommunications Engineer” dated 20 February 2015. In response to the question as to why the incorrect information was provided, the applicant wrote:

    “EA assessor suggested the nomination code to be changed from electronics engineer into telecommunications engineer ANZSCO 263311”.

14. The occupation of Electronics Engineer is listed in ANZSCO 233411 Unit Group 2334 Electronics Engineers. The occupation of Telecommunications Engineer, ANZSCO 263311 is listed within Unit Group 2633 Telecommunications Engineering Professionals. Both are occupations which the relevant Gazette specifies Engineers Australia as the assessing authority.

15. The delegate determined that the applicant had in fact nominated the occupation of Electronics Engineer and had not nominated the occupation of Telecommunications Engineer, and that by providing a skills assessment in the latter occupation of Telecommunications Engineer the applicant provided a skills assessment in the occupation which had in fact been nominated, and accordingly did not satisfy cl.485.224(1).

16. Prior to the hearing conducted in the matter, the applicant’s representative argued that an incorrect answer had been provided on the application form concerning the applicant’s nominated occupation, which the applicant had sought to amend with the Department. The representative further submitted that the applicant had not instructed his previous representative in relation to any particular nominated occupation, and once the applicant had become aware that the incorrect occupation of Electronics Engineer had been provided, the applicant sought to correct this to Telecommunications Engineer. The representative argued that the applicant was not changing a nominated occupation so much as correcting an incorrect correct answer found during processing.

17. At the hearing, the Tribunal indicated to the applicant and his representative that it was not inclined to accept the submission that the applicant was simply correcting an error and the Tribunal had formed a preliminary view that the applicant was in fact seeking to change the original nominated occupation of Electronics Engineer into a new occupation of Telecommunications Engineer.

18. Further written submissions were provided to the Tribunal following the hearing reiterating the earlier submissions to the effect that the applicant was not changing the nominated occupation but merely correcting an error made by a person engaged by the applicant to assist in the application process.

19. Subsequent to the hearing, the Tribunal wrote to the applicant indicating that it was proceeding on the basis that the applicant had indeed nominated the occupation of Electronics Engineer as his nominated occupation and invited the applicant to obtain a skills assessment in the occupation of Electronics Engineer from Engineers Australia at the relevant authority.

20. On 1 September 2015, the applicant through his representative provided evidence of a suitable skills assessment in the occupation of Electronics Engineer, ANZSCO 233411 which was provided by the relevant assessing authority on 1 September 2015.

21. On the evidence before the Tribunal, the Tribunal finds that the applicant nominated the occupation of Electronics Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia.

22. Although the applicant originally provided a skills assessment in the occupation of Telecommunications Engineer, the applicant has subsequently been able to have his skills assessed based upon the same qualifications in the alternative occupation of Electronics Engineer which was nominated as his occupation in the application.

23. Accordingly, the Tribunal finds that the requirements of cl.485.224(1) are met.

24. As the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation, the relevant 3 year period has not ended. The Tribunal accordingly finds that the requirements of cl.485.224(1A) are met.

    How and where was the qualification obtained?

25. 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).

26. Departmental Movement records indicate that the applicant held a student visa at the relevant times.

27. The applicant’s skills were assessed on the basis of a Bachelor of Engineering (Electronic and Communication Engineering) completed by the applicant between 2 March 2009 and 26 November 2012 at RMIT University. The course is registered under the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

28. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa and was obtained as a result of studying a registered course.

29. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

30. It follows that the applicant meets the requirements of cl.485.224 in its entirety.

    CONCLUSIONS

31. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of 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

32. 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.485.224 of Schedule 2 to the Regulations.

    Don Lucas
    Member