1515692 (Migration) - [2016] AATA 4635

1515692 (Migration) [2016] AATA 4635 (4 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr SYED ABBAS RAZA
CASE NUMBER:  1515692
DIBP REFERENCE(S):  BCC2015/2190904
MEMBER:Antonio Dronjic
DATE:4 November 2016
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 (1) of Schedule 2 to the Regulations.
Statement made on 04 November 2016 at 3:33pm

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 5 November 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 31 July 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.
The delegate refused the visa because the applicant did not satisfy cl.485.224 (1) of Schedule 2 to the Regulations. Whilst the visa applicant has submitted evidence of a positive skills assessment for an occupation of a System Analyst (ANZSCO Code 261112), he had not provided evidence of a suitable skills assessment to the Department for his nominated skilled occupation of a Software Engineer (ANZSCO Code 261313). Therefore, the delegate found that the visa applicant did not satisfy the requirements of clause 485.224.
The applicant applied to the tribunal on 17 November 2015 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.
On 12 October 2016, the applicant’s representative submitted:
·Notification of incorrect answers Form 1023;
·The applicant’s statement in which he claims that, in completing the visa application form, he unintentionally selected from the ‘drop menu’ occupation of Software Engineer instead of System Analyst; that he applied for skills assessment nominating the occupation of a System Analyst; that in form 80 he stated that he had been working as a System Analyst and that he had completed Masters in Information Technology Management in Australia; and
·Copy skills assessment letter from Australian Computer Society dated 28 September 2015 evidencing the successful assessment for occupation of a System Analyst.
The applicant appeared before the tribunal on 13 October 2016 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent.
The applicant reiterated statements contained in his letter submitted to the tribunal on 12 October 2016. He gave evidence that he made…

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: 1515692 (Migration) [2016] AATA 4635
Case: [2016] AATA 4635
Decision Date: 4 November 2016

CaseChat Overview and Summary

The applicant sought to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, specifically clause 485.224 of Schedule 2 to the Regulations, which pertains to the applicant's skills in relation to their nominated skilled occupation. The dispute before the tribunal concerned whether the applicant had met this requirement, which necessitates a skills assessment by a relevant authority as suitable for the nominated occupation within the last three years, and for the assessment period not to have expired.

The tribunal was required to determine the applicant's nominated skilled occupation for the Subclass 485 visa. The tribunal noted that case law, such as *Patel v Minister for Immigration and Citizenship & Anor* [2011] FCA 1220, establishes that under the General Skilled Migration visa scheme post-September 2007, an applicant cannot change their nominated skilled occupation during the visa processing. Therefore, the tribunal had to ascertain the applicant's actual nominated occupation based on the evidence presented.

The tribunal reasoned that while the applicant had submitted a Form 1023 indicating "System Analyst" as their correct nominated occupation, this did not definitively resolve the issue. However, the tribunal observed that the applicant's skills assessment application form lodged with the Australian Computer Society (ACS) clearly nominated "System Analyst," and this assessment, dated 28 September 2015, was referenced by both the skills assessment and the Form 1023. Consequently, the tribunal was satisfied that the reference to "Software Engineer" in the visa application was an unintentional error and that the applicant had nominated "System Analyst" (ANZSCO Code 261112) in their visa application lodged on 31 July 2015. The tribunal concluded that the applicant met the requirements of clause 485.224(1).

The tribunal remitted the application for a Skilled (Provisional) (Class VC) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria under clause 485.224(1) of Schedule 2 to the Regulations.

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 cl. 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 this requirement.Has the applicant been assessed as suitable for the nominated occupation? 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). The tribunal observes that the Courts have considered whether an applicant can, at a later date, change the skilled occupation they originally nominated in their visa application. As a result, it has been held that under the General Skilled Migration visa scheme (post 1 September 2007), it is not possible for an applicant to change his/her nominated skilled occupation during the processing of the visa application.[1] [1] Patel v Minister for Immigration and Citizenship & Anor [2011] FCA 1220 (Robertson J, 31 October 2011) at [53] – [61] and Chen v Minister for Immigration and Citizenship & Anor [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011) It is a question of fact for the tribunal as to which occupation the visa applicant actually nominated for the purposes of his subclass 485 visa. The tribunal notes, having regard to the reasoning in Patel’s case, that the fact that the visa applicant subsequently submitted to the tribunal a signed ‘Notification of Incorrect answers’ (Form 1023) dated 11 October 2016, stating that his correct nominated skilled occupation was that of a System Analyst, does not necessarily finally determine this issue for the tribunal. In considering this issue the tribunal observes that, in the skills assessment application form the visa applicant lodged with ACS, he clearly nominated a System Analyst as his skilled occupation. This skills application resulted in a positive skills assessment on 28 September 2015. The tribunal also notes that both of these documents refer to the same skills assessment reference number, confirming for the tribunal that the visa applicant applied for a skills assessment as a System Analyst and not as a Software Engineer. Accordingly, the tribunal is satisfied that the visa applicant did not intend to nominate a ‘Software Engineer’ as his skilled occupation for his subclass 485 visa application and that the reference to this in his visa application was an unintentional error. As a result, given the evidence before it, the tribunal finds that the visa applicant nominated the skilled occupation of System Analyst (ANZSCO Code 261112) in the online visa application he lodged on 31 July 2015.

Decision

Reasons for decision

It follows that the applicant meets the requirements of cl.485.224 (1). 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 (1) of Schedule 2 to the Regulations.Antonio DronjicMember

Ratio Decidendi

Legal Principle Established

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