Bidha (Migration) - [2023] AATA 1457

Bidha (Migration) [2023] AATA 1457 (12 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Thinley Bidha
Mr Tshering Wangdi
Master Kinley C Choden
Miss Kinley Ngawang Payza
REPRESENTATIVE:  Mr Ashutosh Sharma (MARN: 1682588)
CASE NUMBER:  2119133
HOME AFFAIRS REFERENCE(S):          BCC2021/365671
MEMBER:Warren Stooke AM
DATE:12 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named and second named applicants meet the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations;
·cl 485.222 of Schedule 2 to the Regulations; and
·cl. 485.311 of Schedule 2 to the Regulations.

Statement made on 12 May 2023 at 4:52pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – two academic years of relevant study – courses completed within 6 months before visa application – courses closely related to skilled occupation – relationship between Engineering Technology studies and occupation of Civil Engineer – skills assessment – correction of incorrect occupation – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222, 485.311; Schedule8, Condition 8501; rr 1.03, 1.15
CASES
Akbar v Minister for Immigration and Border Protection [2019] FCA 515
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 Home Affairs on 1 December 2021 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 11 March 2021. 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 (Cth) (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 to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl 485.222 of Schedule 2 to the Regulations because the applicant’s Bachelor of Engineering Technology qualification is not closely related to the nominated occupation of Civil Engineer with ANZSCO Code: 233211 and the delegate found that the applicant did not meet the requirement of Regulation 485.222.
The applicants appeared before the Tribunal on 26 April 2023 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and provided a copy of the decision to the Tribunal with the application for review. In this regard, the applicant stated that she understood the visa was refused because the decision said it was the wrong occupation within the migration rules.
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 485.221 and cl 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.221(b)); and secondly, unless limited circumstances apply, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222(1)). The issue in the present case is whether the applicant meets those requirements.
The applicant is a 42 year old from Bhutan, who was granted a Bridging Visa A on 11 March 2021 with health condition 8501 that became active at the end of the applicant’s Student (Temporary) Visa on 15 March 2021.
The applicant provided evidence of health insurance with BUPA that commenced on 15 March 2021.
The applicant provided evidence of a National Police check dated 27 February 2021 that identified ‘no disclosable court outcomes’.
The applicant provided evidence of completion of the following courses of study to the Department and the Tribunal in relation to the Advanced Diploma of Engineering Technology (Electrical) completed on 14 December 2020 :
● Automotive Mechanical Technology, 6 July 2009 to 16 April 2010
● Certificate III in Frontline Management, 26 April 2010 to 25 June 2010
● Diploma of Management, 5 July 2010 to 4 February 2011
● Business and Management, 30 March 2011 to 30 September 2011
● Business and Management, 1 October 2011 to 30 March 2012
● Diploma of Engineering Technology, 16 July 2012 to 24 July 2015
● Advance Diploma of Engineering Technology, 16 July 2012 to 24 July 2015
● Associate Degree of Engineering Technology, 1 July 2015 to 1 November 2018
● Bachelor of Engineering Technology, 1 July 2015 to 4 December 2019
● Advanced Diploma of Engineering Technology (Electrical), 14 December 2020.
The applicant provided evidence of a skills assessment by Engineers Australia on 15 April 2021 for the nominated occupation of Electrical Engineer Draftsperson – ANZSCO Code: 312311.
On 6 April 2021 the applicant advised the Department of Incorrect answers pertaining to the applicant’s application lodged on 11 March 2021 in order to correct the nominated occupation and ANZSCO Code. In this regard, the evidence produced to the Tribunal confirmed that the applicant sought to remove the incorrect nomination of the occupation of Civil Engineering Draftsperson ANZSCO Code: 312211 and insert in lieu thereof, the correct nomination of the occupation of Electrical Engineering Draftsperson ANZSCO Code: 312311. The applicant provided the reason for the correction to the Department, as - “The incorrect information was provided due to the negligence of the agent”.
The ANZSCO Code for an Electrical Engineering Draftsperson – ANZSCO Code: 312311 includes the following descriptor:
UNIT GROUP 3123 ELECTRICAL ENGINEERING DRAFTSPERSONS AND TECHNICIANS
ELECTRICAL ENGINEERING DRAFTSPERSONS AND TECHNICIANS assist in electrical engineering research, design, manufacture, assembly, construction, operation and maintenance of equipment, facilities and distribution systems.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
opreparing drawings, plans and diagrams of electrical installations and circuitry
oassisting Electrical Engineers and Engineering Technologists in design and layout of electrical installations and circuitry on substations, switchgear, cabling systems and motor control systems
ocollecting data, performing tests and complex calculations, graphing results, and preparing charts and tabulations
oestimating materials costs and quantities
oinspecting designs and finished products for compliance with specifications and regulations
oassembling, installing, testing, calibrating, modifying and repairing electrical equipment and installations to conform with regulations and safety requirements
oundertaking electrical workshop functions such as installing assemblies for protection relays, metering and indicating devices
oassisting with research and experimentation programs

Occupations:
312311 Electrical Engineering Draftsperson
312312 Electrical Engineering Technician

312311 ELECTRICAL ENGINEERING DRAFTSPERSON
Prepares detailed drawings and plans of electrical installations and circuitry in support of Electrical Engineers and Engineering Technologists. Registration or licensing may be required.
Skill Level: 2
Specialisations:
Electrical Engineering Design Draftsperson
Electrical Engineering Detail Draftsperson
Electrical Engineering Drafting Officer
Relays Draftsperson
Substation Design Draftsperson
The applicant stated that she was not working as an electrical engineer at the moment and that she was working in aged care.
The applicant stated that she had not worked as an electrical engineer in Australia and had worked with LH Global in Bhutan.
Graduate Work stream visa (cl. 485.221 and cl. 485.222)
The applicant provided evidence that the applicant has had a skills assessment with Engineers Australia for the nominated occupation of Electrical Engineering Draftsperson – ANZSCO Code: 312311. As such, the Tribunal is satisfied that the applicant’s qualification with a Bachelor of Engineering Technology undertaken from 1 July 2015 to 4 December 2019 and Advanced Diploma of Engineering Technology (Electrical), completed on 14 December 2020, satisfies the ANZSCO descriptor for the occupation of an Electrical Engineering Draftsperson.
Further, the Tribunal accepts that the applicant endeavoured to correct the nominated occupation with the Department in a formal application dated 6 April 2021, which was 8 months prior to the delegate’s issued decision on 1 December 2021. In this regard, evidence was provided at hearing that the Department did not correspond with the nominee before the decision of 1 December 2021 was advised to the applicant.
The Tribunal is satisfied that the correct occupation to be assessed with the nomination is Electrical Engineering Draftsperson.
The Tribunal is guided by the decision of Collier J. in Akbar v Minister for Immigration and Border Protection [2019] FCA 515 (16 April 2019) at par. [48] and [49]:
“[48] Before the Tribunal the visa applicant relied on ss 99, 100 and 105 of the Migration Actand argued, inter alia, that he was able to change his nominated application because the information initially provided was “incorrect”. The Tribunal rejected this argument because the nominated occupation of “finance manager” was clearly made on the visa application form, and the evidence in the case did not support the contention that he had made a “mistake”. As Mortimer J observed:
[22] ... The only “mistake” the Tribunal found was that the first appellant, having correctly recorded in his visa application the occupation he intended to specify as his nominated occupation, subsequently discovered he had been ill-advised and he lacked the qualifications necessary to secure an assessment of suitability for that occupation.
[23] While in colloquial terms that is a mistake, it was not, as the Tribunal found, a mistake in the sense of the first appellant specifying on the visa application an occupation he did not intend to specify. Rather, as the Tribunal found, on subsequently discovering (more than 18 months later) that he was not qualified to be assessed as suitable for that occupation, the first appellant changed his mind and nominated a different occupation. That was not, the Tribunal found, the kind of “error” capable of correction under s 105 of the Act.
[49] Before Mortimer J the appellant contended that the Tribunal should have concluded that there was a mistake, which was corrected by the VETASSESS assessment for the occupation of “marketing research analyst”, and that Patel did not apply. Her Honour disagreed:
[33] The language of the visa criteria in cl 485.214 are not susceptible to any broader reading than that given by the Tribunal, subject perhaps to the qualification it expressed in its reasons that it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify. However, this was not such a case: as the tribunal found, there was no lack of clarity, or lack of intention, around the first appellant’s choice to specify “finance manager” on his visa application at the time he made the application.”
The Tribunal has considered carefully the issue of whether the applicant could effect a change to a corrected criteria for the nominated occupation of Electrical Engineering Draftsperson for the purposes of this visa application. In this regard, the Tribunal accepts that an applicant cannot change his or her nominated occupation, however there is no definitive answer as to whether an applicant can correct a mistake in the nominated occupation, where such a mistake was clearly unintended, especially when considering the relevance of the underlying courses of study and the true ANZSCO Code: 312311 by which the applicant will be assessed against the intended occupation of Electrical Engineering Draftsperson, as denoted in this case, including an occupational assessment by Engineers Australia for the occupation of Electrical Engineering Draftsperson - ANZSCO Code: 312311.
The Tribunal, having considered the compelling circumstances of this case, finds that “it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify”. In doing so, the Tribunal accepts that the applicant intended to apply for a visa in the nominated occupation of Electrical Engineering Draftsperson.
Does the applicant meet the Australian study requirement?
Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
·that are registered courses; and
·that were completed in a total of at least 16 calendar months; and
·that were completed as a result of a total of at least 2 academic years study; and
·for which all instruction was conducted in English; and
·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: (LIN: 19/085).
The Tribunal is satisfied that the applicant completed her course of study of an Advanced Diploma of Engineering Technology (Electrical) on 14 December 2020, which is within 6 months of the completion of the applicant’s course of study before lodging her application.
The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.
Therefore, the applicant meets cl 485.221.
On the basis that the primary applicant has met the requirements of cl. 485.221 and cl. 485.222, it follows that the secondary applicants are members of a family unit that have met the required criteria.
Further, on the basis of the above findings, the Tribunal finds that the applicants meet the requirements of cl 485.221 and 485.222. 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 applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named and second named applicants meet the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations;
·cl 485.222 of Schedule 2 to the Regulations; and
·cl. 485.311 of Schedule 2 to the Regulations.
Warren Stooke AM
Member