Bhandari (Migration)

[2018] AATA 3529

Bhandari (Migration) [2018] AATA 3529 (23 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yam Bahadur Bhandari

CASE NUMBER:  1710970

DIBP REFERENCE(S):  BCC2017/1004245

MEMBER:Karen Synon

DATE:23 July 2018

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.485.231(1) of Schedule 2 to the Regulations.

Statement made on 23 July 2018 at 1:20pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – No evidence of skills assessment – Intention to apply under post study work stream – Assess application under different stream – Held a specified qualification – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15I, 2.26B, Schedule 2 cl 485.231

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 8 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 14 March 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 because when his application was made, it was not accompanied by evidence that he had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority.

4. The applicant applied for review of the primary decision on 23 May 2017 and provided a copy of the department’s decision to the Tribunal.

5. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Had the applicant applied for a relevant skills assessment?

8. 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’.

9. ‘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 16/059.

10. On the evidence before the Tribunal, the applicant nominated the occupation of ‘Accountant (General)’ which is a specified skilled occupation.  For that occupation, the relevant assessing authorities are specified as: CPA Australia Ltd, Institute of Chartered Accountants of Australia and the Institute of Public Accountants.

11. On the application form the applicant responded ‘No’ to the question ‘Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?’.

12. 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.

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

13. In a written statement to the Tribunal the applicant relevantly asserted:

    …The visa application was lodged by myself (sic) and I was not assist (sic) from any migration agent.  After I finish my Masters of Professional Accounting from my university, I was legally eligible for Temporary Graduate (Class VC, subclass 485) as per Australian Immigration rules and regulations.  As you know, there are two streams in this visa class, first the Temporary graduate (Class VC subclass 485) – Graduate work stream and the second is Temporary Graduate (classic class VC subclass 485) – Post – study work stream.  I was eligible for the second visa class but unfortunately applied for the first one.  This was the main reason for refusal to grant Temporary Graduate (Class VC subclass 485) although I fulfil all the requirements to be eligible for the visa criteria.  Moreover, though I applied Temporary Graduate (Class VC subclass 485) – Graduate work stream, there is one option which I selected No to that too, otherwise there should have been given me notification or requested for needed supporting documentation by immigration officer…This was truly a human error although being eligible for that visa class.  This happened because I did it myself with less experience and knowledge…

14. The visa application 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.

15. As noted 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 the statement in paragraph 13, persuades the Tribunal that the applicant did not intend to apply for a 485 visa under the Graduate Work Stream but rather always intended to apply under the Post-Study Work Stream which has no such requirement for a skills assessment.

16. The Tribunal is of the view 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.

17. After reviewing the Schedule 1 criteria[1] 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,[2] the Tribunal is satisfied that the applicant substantially complied with visa application form for the Post-Study Work Stream.

    [1] Item 1229.

    [2] Item 1229 (3)(l)(i).

18. 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.

19. This instrument relevantly specifies, for the purpose of subclause 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;

    f)Doctoral Degree

20. Evidence before the Tribunal is that the applicant successfully completed a Master of Professional Accounting at Charles Sturt University on 24 February 2017.

21. On this basis, 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

22. 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 Synon
    Member