Araque (Migration)

[2018] AATA 58

Araque (Migration) [2018] AATA 58 (18 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Carlos Araque

CASE NUMBER:  1712008

DIBP REFERENCE(S):  BCC2017/1369930

MEMBER:Catherine Carney-Orsborn

DATE:18 January 2018

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.485.231 of Schedule 2 to the Regulations

Statement made on 18 January 2018 at 9:32am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Gradate ) – Graduate Work stream – Did not submit relevant skills assessment – Intended to apply for the “Post Study Work Stream” – Applicant meets these visa conditions

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 rr 1.03, 2.26B Schedule 2 cls 485.231, 485.231(1), 485.231(2), 485.231(3), 485.223

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 2017 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 13 April 2017. 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 because the applicant did not satisfy cl.485.223 of Schedule 2 to the Regulations as the applicant chose the Graduate Work stream and answered no to the question on the lodgement form which asked if he had applied to a relevant assessing authority for an assessment of his skills for his nominated skilled occupation.

4. The applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.  The issue in the present case is whether the applicant meets those requirements.

   Had the applicant applied for a relevant skills assessment?

7. 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’.

8. ‘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).

9. On the evidence before the Tribunal, the applicant nominated the occupation of Software Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is ACS.

10. The Tribunal has the Department’s file before it.  The file contains the application lodged with the Department by the applicant.  In response to the question whether he had applied to a relevant assessing authority for an assessment of his skills for the nominated skilled occupation he responded no.

11. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.

12. The applicant attended a hearing at the Tribunal.  The applicant said he came to Australia in April 2010. He states he was on a student visa.  The applicant’s movement records indicate he came to Australia in 2010 on a student visa.  He has been on subsequent student visas. 

13. He stated that he has family in Columbia and he has returned to see them.  He does graphic and web design.

14. At hearing the Tribunal explained that the issue was that he had not provided any evidence at the time of application of having sought a skills assessment.

15. The applicant stated that he had meant to apply for the post-study stream.  He said he did not know there were two streams.  He had met all the criteria for a post-study stream and that was why he said “no” to the question about the skills assessment as he thought he had applied for the post-study stream.

16. He claims that the first he knew about the other stream was when he received the decision, he claimed he had no other contact with the Department.

17. The applicant lodged his application with the Department on 13 April 2017 and the Department’s decision was made on 18 May 2017.

18. The Tribunal will consider substantial compliance and whether the applicant satisfied cl.485.231.

19. The independent corroborative evidence before the Tribunal held on the Department file and the Tribunal file indicates that the applicant did meet the requirement for the post-study stream at the time of application.

20. The applicant has completed a Master (by coursework) degree.   He completed a Master of Information Technology at the Central Queensland University in March 2017.

21. Cl.485.231(1) requires the applicant to hold a qualification of a kind specified in a relevant written instrument.  The relevant instrument is IMMI 13/013.

22. Evidence on the Department file indicates that the applicant has a Master of Information Technology (by coursework) from Central Queensland University.  This is a qualification of a kind specified in the applicable written instrument.    

23. Cl.485.231(2) requires that the qualification was conferred or awarded by an educational institution specified in a relevant written instrument.  IMMI 13/031.  Central Queensland University is a CRICOS Provider.    

24. Cl. 485.231(3) requires that the applicant’s study for the qualification satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.   The applicant was awarded his Bachelor Degree in March 2017.  He lodged his application on 13 April 2017. 

25. Movement records indicate that the applicant held a student visa while he undertook his studies.

26. The Tribunal is satisfied that the applicant meets cl.485.231.

27. After considering all the evidence before it the Tribunal is satisfied that the applicant has substantially complied with the visa application for the intended stream “Post Study Work Stream”.

28. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.231 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

29. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations

    Catherine Carney-Orsborn
    Member