1607695 (Migration)

[2016] AATA 4574

1607695 (Migration) [2016] AATA 4574 (14 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lu Chen

CASE NUMBER:  1607695

DIBP REFERENCE(S):  BCC2016/275739

MEMBER:Katie Malyon

DATE:14 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 14 October 2016 at 5:31 pm

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 18 May 2016 to refuse to grant the applicant, Miss Lu Chen, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Chen applied for the visa on 19 January 2016. 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).  

3. The delegate refused the visa on the basis that Ms Chen did not satisfy cl.485.224 of Schedule 2 to the Regulations because she did not provide a favourable skill assessment stating she was suitable for her nominated occupation at the time of the delegate’s decision.

4. Ms Chen appeared before the Tribunal by telephone on 12 October 2016 to give evidence and present arguments.  The Tribunal’s hearing was conducted with the assistance of an interpreter in the Mandarin and English languages although it is noted Ms Chen rarely had occasion to use the interpreter.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Ms Chen is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and cl.485.224 of Schedule 2 to the Regulations. These criteria are concerned with an applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether Ms Chen meets the requirements of cl.485.223 and cl.485.224 of Schedule 2 to the Regulations.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223 of Schedule 2 of the Regulations requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of their skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’. The term ‘skilled occupation’ has the meaning given by r.1.15I of the Regulations. A skilled occupation in relation to a person is defined to mean an occupation of a kind:

   (a)  that is specified by the Minister in an instrument in writing to be a skilled occupation; and

   (b)  if a number of points are specified in the instrument as being available - for which the number of points are available; and

   (c)  that is applicable to the person in accordance with the specification of the occupation.

8. The expression ‘relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations. The relevant instrument in this case is Legislative Instrument IMMI 16/060.

9. On the evidence before the Tribunal, Ms Chen nominated the occupation of Accountant (General) ANZSCO 221111 which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is Certified Practising Accountants Australia (CPA Australia), the Institute of Chartered Accountants of Australia (now known as Chartered Accountants Australia and New Zealand) or the Institute of Public Accountants. 

10. The Department’s file confirms that, in her Subclass 485 visa application, Ms Chen indicated a skills assessment would be lodged with the Institute of Chartered Accountants.  However, not only did Ms Chen respond “no” to the question as to whether she had already applied for a skills assessment for her nominated skilled occupation but she also did not provide the date of a skills assessment application or a reference number in respect of her skills assessment application.  No other supporting evidence was provided with her Subclass 485 visa application suggesting that, at the time of application, Ms Chen had applied for a skills assessment. 

11. At the hearing, Ms Chen acknowledged that she had not applied for a skills assessment at the time of her Subclass 485 visa application. She told the Tribunal that it was an honest mistake that she made when completing her visa application on-line. Ms Chen said she did not realise that there were 2 streams in the Subclass 485 visa. She added that, had she known, she would have applied instead for the Post-study work stream (rather than the Graduate Work stream) because a skills assessment is not required at the time of application for that steam and she otherwise meets criteria for the Post-study work stream since she completed her Master of Professional Accounting (Business Management) at the University of Tasmania on 28 November 2015, that is, in the 6 months before making her Subclass 485 visa application. The Tribunal noted that item 1229(3)(j) of Schedule 1 of the Regulations allows applicants for a Subclass 485 visa to nominate only one stream to which their application relates. Ms Chen told the Tribunal she is now working as an Accountant with Silver Academy in Brisbane.

12. Accompanying Ms Chen’s application for review lodged with the Tribunal on 25 May 2016 is evidence of completion of her Master degree.  She also provided a favourable skill assessment from CPA Australia Ltd dated 19 May 2016 for 485 visa purposes (the Assessment).  Ms Chen confirmed that she lodged her application for skills assessment with CPA Australia only after receiving a request from the Department to provide such evidence.  The Tribunal notes that the Assessment indicates Ms Chen’s application to CPA Australia was received on 16 April 2016, that is, nearly 3 months after she lodged her Subclass 485 visa application.

13. The Tribunal has had regard to Ms Chen’s explanation as to why her visa application was not accompanied by evidence that she had already applied for a skills assessment of her nominated occupation.  However, as explained to her at the hearing, the Tribunal has no discretion in this matter and must apply the law.  Ms Chen understood.  The Tribunal suggested she seek immigration advice regarding her next steps.

14. Based on evidence provided the Tribunal finds that, as the visa application when made on 19 January 2016 was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, Ms Chen does not satisfy the requirements of cl.485.223 of Schedule 2 of the Regulations. In the circumstances, it has not been necessary for the Tribunal to consider other criteria for grant of the visa including cl.458.224 of Schedule 2 of the Regulations.

15. On the basis of the above findings, the Tribunal finds that Mr Chen does not satisfy the criteria for the grant of a Subclass 485 visa.  As this is the only relevant Subclass in this case, the decision under review must be affirmed.

16. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Katie Malyon

    
    Member