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

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).
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.
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.
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.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1503872 (Migration) [2015] AATA 3370
Case: [2015] AATA 3370
Decision Date: 1 September 2015

CaseChat Overview and Summary

The matter before the Tribunal involves an applicant seeking a Subclass 485 visa in the Graduate Work stream. The primary issue at hand is whether the applicant meets the specific criteria outlined in clause 485.224 of Schedule 2 to the Regulations, which pertain to the skills required for the nominated skilled occupation. Clause 485.224 stipulates that the applicant’s skills for the nominated occupation must have been assessed by a relevant authority within the last three years, and that the period of validity for the assessment, if specified, must not have expired. Additionally, if the skills assessment is based on a qualification obtained in Australia while the applicant held a student visa, it must be for a registered course. The applicant had initially nominated the occupation of Electronics Engineer, ANZSCO code 233411, but later submitted a skills assessment for the occupation of Telecommunications Engineer, ANZSCO code 263311. The Tribunal was required to determine whether this change in nominated occupation affected the applicant's compliance with the visa criteria.

The Tribunal considered the applicant's submissions that the change in nominated occupation was suggested by the assessing authority, Engineers Australia (EA). The applicant had submitted evidence of the skills assessment for Telecommunications Engineer, which was deemed valid and relevant to the assessment process. The Tribunal noted that both occupations are listed in the relevant Gazette as being assessed by EA. The Tribunal had to decide whether the applicant's provision of a skills assessment for the occupation of Telecommunications Engineer, rather than Electronics Engineer, meant that the applicant had not satisfied the criteria under clause 485.224(1). The Tribunal concluded that the applicant had met the requirements of clause 485.224(1) by providing a valid skills assessment for the nominated occupation as suggested by EA.

In its decision, the Tribunal found that the applicant had satisfied the requirements of clause 485.224 of Schedule 2 to the Regulations. The Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in clause 485.224. The Tribunal's decision acknowledged that the applicant's skills assessment for the occupation of Telecommunications Engineer was valid and relevant, and that the initial nomination of Electronics Engineer was a mistake suggested by the assessing authority. As a result, the Tribunal determined that the applicant should be considered for the visa based on the provided evidence and the direction that the applicant meets the specified criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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). 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). 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. 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. 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. 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”. 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. 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).

Decision

Reasons for decision

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 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 LucasMember

Ratio Decidendi

Legal Principle Established

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