Awari (Migration)

[2018] AATA 5082

Awari (Migration) [2018] AATA 5082 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ricky Phiewi Awari

CASE NUMBER:  1816999

DIBP REFERENCE(S):  BCC2018/1251795

MEMBER:Karen McNamara

DATE:4 December 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(1) of Schedule 2 to the Regulations.

Statement made on 04 December 2018 at 9:45am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work Stream  – skills assessment – electrical engineer – applied for incorrect visa stream instead of Post-Study Work Stream – Notification of Incorrect Answer Form submitted to department – assessed as Post-Study Work Stream in line with consent remittal of the Federal Circuit Court in BRG368/2017 – successfully completed relevant qualification – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 485. 223, 485.231(1), rr 1.15I, 2.26B

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 22 May 2018 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 15 March 2018. 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. 223 of Schedule 2 to the Regulations because the applicant had not provided evidence that he had applied for an assessment of his skills for the nominated occupation of Electrical Engineer by a relevant assessing authority.

4. The applicant applied for review of the primary decision on 11 June 2018 and provided a copy of the delegate’s decision to the Tribunal.

5. On the 5 November 2018, the applicant wrote to the Tribunal seeking a postponement of his hearing which was initially scheduled for the 7 November 2018. The matter was subsequently rescheduled to be heard on 20 November 2018.

6. On the 20 November 2018 the applicant provided to the Tribunal copies of emails between himself and the Department in regard to his visa application.

7. The applicant appeared before the Tribunal via telephone on 20 November 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. 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’.

11. Clause 485.224 requires that the skills of the applicant’s nominated skilled occupation have been assessed during the last three years by a relevant assessing authority for that occupation.

12. ‘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 18/007.

13. On the evidence before the Tribunal, the applicant nominated the occupation of Electrical Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia.

14. At the time of application, the applicant nominated the occupation Electrical Engineer. In his visa application in response to the question “have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?” the word ‘no’ is recorded.

15. At the hearing the Tribunal explained to the applicant the requirements of cl.485.223,noting that his visa application was not accompanied by evidence that he had applied  for an assessment of his skills for the nominated ‘skilled occupation’ by the relevant assessing authority.

16. The applicant told the Tribunal that when he applied he chose the wrong visa stream and had intended to apply for the Post-Study Work Stream. To date the applicant has not applied for a skills assessment.

17. As the visa application when lodged, 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.

Did the applicant intend to apply under the Post-Study Work Stream?

1. At the hearing the applicant told the Tribunal that he lodged the application by himself without any professional migration assistance and thought at the time that he didn’t think that he needed a skills assessment because he thought he had applied under the Post-Study Work Stream. When he realised that he had applied for the wrong stream he attempted to rectify the situation and contacted the Department.

2. On the 21 March 2018 the applicant advised the Department via email that he had incorrectly applied for the Temporary Graduate Visa (subclass 485) and should have applied for the Post-Study Work Stream. His email states that he had previously called the Department and was advised that he would need to make another application. The applicant advised the Department that he could not afford another application fee and asked if he could change the stream of his application. Evidence before the Tribunal including that held on the Department’s file, indicates that the applicant completed and submitted to the Department on 23 March 2018, a Notification of Incorrect Answer Form to advise that he had incorrectly chose the wrong visa stream and that the correct visa stream was a Post-Study Work visa.

3. The applicant told the Tribunal that he has not applied for a skills assessment as he never intended to apply for a Temporary Graduate Visa, which requires a skills assessment.

4. The visa form clearly states:

   “To be eligible to be granted a subclass 485 visa through the Graduate Work Stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below you may not be able to lodge or to be granted a visa.”

5. As noted at paragraph 14 above, the applicant clearly answered ‘No” to the question “have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?”  which, given that the applicant to date has not applied for a skills assessment and that he notified the Department within six days of making his application of his mistake, persuades the Tribunal that the applicant did not intend to apply for a Subclass 485 visa under the Graduate Work Stream, but rather intended to apply under the Post-Study Work Stream which has no such requirement for a skills assessment.

6. The Tribunal is satisfied that it is able to assess this application under the Post-Study Work Stream rather than the selected Graduate Work Stream in line with a consent remittal of the Federal Circuit Court in BRG368/2017.

7. After reviewing the Schedule 1 criteria and being satisfied that the applicant held a Student Temporary (Class TU) visa that was granted on the basis of an application made on or after 5 November 2011 and that it was the first student temporary (Class TU) visa the applicant held, the Tribunal is satisfied that the applicant substantially complied with visa application form for the Post –Study Work Stream.

8. The Post-Study Work Stream requires that the applicant holds a qualification of a kind specified by the Minister in an instrument in writing for this subclause: cl.485.231(1) the relevant instrument is IMMI 13/013.

9. This instrument specifies, for the purposes of subclass 485.231(1), the following qualifications that are a result of study undertaken at  Australian Qualifications Framework level seven or higher:

   (a)Bachelor Degree;

   (b)Bachelor (Honours) Degree;

   (c)Masters by Coursework degree;

   (d)Masters by Research Degree

   (e)Masters (extended) Degree; and /or Doctoral Degree.

10. The Tribunal is satisfied on the evidence before it that the applicant has successfully completed a Bachelor of Engineering, Major Computer Systems Engineering from James Cook University in December 2017.

11. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.231 (1) 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

12. 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 (1) of Schedule 2 to the Regulations

    Karen McNamara
    Member