1514170 (Migration)

[2016] AATA 3995

1514170 (Migration) [2016] AATA 3995 (14 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanu Raja Maharjan

CASE NUMBER:  1514170

DIBP REFERENCE(S):  BCC2015/1198311

MEMBER:Antoinette Younes

DATE:14 June 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 14 June 2016 at 5:26pm

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 6 October 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 23 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 as the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because the applicant did not have a suitable skills assessment.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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’.

7. ‘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 IMMI15/091.

8. The applicant nominated the occupation of Accountant (ANZSCO 221111) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is CPA/ICAA/IPA.

9. The applicant lodged an electronic application for a subclass 485 Graduate Work Stream visa on 23 April 2015. In that application, he indicated that he had applied for an assessment of his skills for his nominated occupation of Accountant. The Department requested the outcome of the assessment which the applicant did not provide.  Accordingly the visa application was refused.

10. The applicant provided to the Tribunal a successful Skills Assessment for his nominated occupation of Accountant, dated 11 November 2015 from CPA.  On 3 June 2016, the Tribunal received confirmation from CPA that the information provided in the skills assessment is correct.

11. On the basis of the available information, the Tribunal finds that when the visa application was made, it was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority.  Therefore, the applicant meets the requirements of cl.485.223.

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

12. 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.

13. On the basis of the available information, the Tribunal finds that the applicant’s skills for the nominated occupation of Accountant have been assessed by CPA during the last three years as being suitable for that occupation. The skills assessment is valid.  Therefore the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

14. 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).

15. On the evidence before the Tribunal, the Tribunal is satisfied that the applicant’s skills were assessed on the basis of qualifications obtained in Australia while the applicant held a student visa. Whilst the holder of a student visa, the applicant obtained a Bachelor of Professional Accounting and a Master of Business Administration from Holmes Institute.  As the qualifications were obtained as a result of studying registered courses, the applicant satisfies the requirements of cl.485.224(2). 

16. On the basis of the above, 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 therefore to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. 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