1504652 (Migration)

[2015] AATA 3572

1504652 (Migration) [2015] AATA 3572 (28 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Reiko Okazaki

CASE NUMBER:  1504652

DIBP REFERENCE(S):  BCC2015/81260

MEMBER:Mary Cameron

DATE:28 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

·cl.189.212(1)(a) of Schedule 2 to the Regulation

Statement made on 28 October 2015 at 2:40pm

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 24 March 2015 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was invited to apply for the visa on 9 January 2015 and applied for the visa on 9 January 2015 nominating the skilled occupation of Solicitor (ANZSCO 271311).

3. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy cl.189.212(1). Specifically, the delegate was not satisfied that the applicant’s skills had been assessed as suitable for her nominated skilled occupation by the relevant assessing authority at the time of invitation to apply for the visa.

4. The applicant appeared before the Tribunal on 20 October 2015 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Suitable Skills Assessment

6. Clause 189.212(1) 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. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa.

7. ‘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). ‘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 these purposes is Legislative Instrument IMMI 14/048.

8. IMMI 14/048 provides that the relevant assessing authority for the applicant’s nominated skilled occupation of Solicitor is the State Legal Admission Authority (SLAA).  According to the Department’s website ( in Victoria this is the Council of Legal Education and Board of Examiners ( whose website provides that:

   The Council of Legal Education and the Board of Examiners jointly regulate entry into the Legal profession in Victoria.

   The role of the Council is to determine the requirements for admission, approve law courses and practical legal training providers and assess the qualifications of overseas practitioners.

   The Board determines the eligibility of individual applicants for admission and provides the certificate upon which the Supreme Court relies when admitting an applicant to practice as an Australian lawyer.

9. The delegate noted that the applicant had submitted a letter from the Council of Legal Education and Board of Examiners, dated 3 April 2012, as evidence of her skills assessment for the nominated position of Solicitor. The delegate observed that the letter advised the applicant that she was required to successfully complete further studies before she would be eligible for admission to the legal profession in Victoria and further observed that she had submitted evidence of having completed those studies and of being subsequently admitted to the legal profession in Victoria. The delegate observed however that the applicant was not admitted to the legal profession in Victoria until 24 February 2015, a date more than a month after the date on which she was invited to apply for the visa.

10. The delegate asserted that solicitors are required to provide evidence of admission to the legal profession in the admitting state or territory as the relevant skills assessment. Although the delegate acknowledged that the applicant had completed the necessary legal training to satisfy the skills requirements for admission, the admission had not taken place before 9 January 2015 which was the time of invitation to apply for the visa.

11. Although the delegate did not cite a reference in the Department’s Procedures Advice Manual 3 (PAM3), the Tribunal has had regard to the reference in PAM3 regarding “Suitable skills assessment” for Subclass 189 visas [at 4.1].  Whilst the reference specifically provides that for doctors evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors.  However, the Tribunal considers that even if it were not, to impose such a requirement in policy would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely 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. In this instance, the letter to the applicant, dated 3 April 2012, from the Council of Legal Education and Board of Examiners stated that the applicant must complete study in and pass the prescribed assessment for several subjects, and complete one of two options for practical legal training, and further directed that her

    …existing academic qualifications and practical legal training are otherwise sufficient for admission to the legal profession in Victoria.

13. As was noted by the applicant in her submissions to the Tribunal, her application for the visa on 9 January 2015 was accompanied by evidence that she had completed the further studies required for admission to the legal profession in Victoria and by a letter from the Director, Practical Training Course at Leo Cussen Institute confirming that she had completed all requirements of the Graduate Diploma in Legal Practice Practical Training Course by 18 December 2014. The applicant also submitted a certificate that she had completed to the satisfaction of the Leo Cussen Center for Law in accordance with the Legal Profession (Admission) Rules 2008 relating to the Qualification and Admission of Candidates a course of practical training at the Leo Cussen Centre for Law from 14 July 2014 to 18 December 2014.

14. Further, the applicant has provided to the Tribunal a copy of correspondence between her and the Council of Legal Education and Board of Examiners between 27 November 2014 and 1 December 2014 in which the applicant requests a skills assessment letter, and the Council responds that “we have already provided you with a full skills assessment (and) therefore we are unable to provide you with a local skills assessment”. The letter to the applicant states that a local assessment is for those who have completed a full Australian law degree which she hasn’t, and is purely a short letter which states that they have completed a full Australian law degree and have completed a course of practical legal training.

15. Taking into account all these circumstances, the Tribunal is satisfied, based on the evidence before it, that the letter to the applicant from the Council of Legal Education and Board of Examiners on 3 April 2012 indicated that the relevant assessing authority had assessed her skills as suitable for her nominated occupation provisional on her completion of addition study requirements. She completed those study requirements and provided evidence of having completed those study requirements with her application on 9 January 2015. Therefore the provisional requirement contained in her skills assessment was met at the time she was invited to apply for the visa.

16. On the basis of this evidence, the Tribunal is satisfied that at the time of invitation to apply, the relevant assessing authority, the Council of Legal Education and Board of Examiners, which is the SLAA for Victoria, had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation of Solicitor (ANZSCO 271311).

17. Accordingly, the Tribunal finds that the applicant satisfies cl.189.212(1)(a).

18. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

19. The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

    ·cl.189.212(1)(a) of Schedule 2 to the Regulations.

    Mary Cameron
    Member