1508352 (Migration)

[2016] AATA 3840

1508352 (Migration) [2016] AATA 3840 (28 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lei Wang

CASE NUMBER:  1508352

DIBP REFERENCE(S):  BCC2015/1149158

MEMBER:Antoinette Younes

DATE:28 April 2016

PLACE OF DECISION:  Sydney

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 28 April 2016 at 11:08am

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 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 17 April 2015. 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(1) of Schedule 2 to the Regulations which requires that the skills of the applicant for the nominated skilled occupation to have been assessed by a relevant assessing authority as suitable for that occupation.

4. The applicant appeared before the Tribunal on 18 April 2016 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 her 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 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.

   Has the applicant applied for a skills’ assessment and have her skills been assessed as suitable for the nominated occupation?

8. 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’.

9. ‘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. ‘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 is Legislative Instrument IMMI 15/091.

10. 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).

11. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

12. On the evidence before the Tribunal, the applicant nominated the occupation of Accountant which is a specified skilled occupation. For that occupation, the relevant assessing authority is CPA Australia.

13. In the decision record provided by the applicant in support of the application for review, it is noted that:

    a.In the application for the visa lodged on 17 April 2015, the applicant nominated “Accountant” as her skilled occupation and she confirmed that she had lodged the skills assessment for this occupation with the relevant assessing authority, namely CPA Australia on 8 April 2015.

    b.An initial assessment was undertaken by case officer in the Department on 14 May 2015 and a request letter was emailed to the applicant’s migration agent on that date seeking, amongst other documents, the skills assessment from CPA Australia for the nominated skilled occupation.

    c.On 2 June 2015, the skills assessment outcome letter from CPA Australia was uploaded. CPA advised in the letter that the result of this skills assessment was that the applicant was deemed to be not academic suitable for migration with respect to the nominated skilled occupation.

    d.Given CPA’s assessment, the applicant was found not to meet the requirements of subclauses 485.224(1).

14. During the hearing, the applicant provided to the Tribunal a skills assessment, received by CPA on 8 April 2015, from CPA Australia advising that the applicant had been assessed as being academically suitable for the temporary visa subclass 485 in the occupation of accountant. The Tribunal asked the applicant why she had not provided evidence that she had applied for the skills assessment when she lodged the visa application. The applicant stated that the migration agent had a new staff member who did not look at the requirements carefully. Subsequent to the hearing the Tribunal requested and received confirmation from CPA Australia that the skills assessment provided by the applicant is a true and correct document containing accurate information.

15. On the evidence before it, the Tribunal finds that at the time of visa application, the applicant had applied for an assessment of her skills with the relevant assessing authority. The visa application was lodged on 17 April 2015 and the application for the skills assessment was lodged on 8 April 2015.  Therefore the requirements of cl.485.223 are met.  The assessment by CPA is that the applicant’s skills are suitable for the occupation of accountant. Therefore the applicant meets the requirements of cl.485.224(1).  The applicant completed a Bachelor of Commerce in Actuarial Studies Finance at the University of New South Wales and a Graduate Diploma of Accounting at Charles Sturt University. The Tribunal is satisfied that both courses are registered courses and therefore the applicant meets the requirements of cl.485.224(2).

16. Consequently, the Tribunal finds that the requirements of cl.485.223 and cl.485.224 are met

17. As the Tribunal has found 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

18. 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.

    Antoinette Younes
    Senior Member