Celaro (Migration)

[2018] AATA 5130

Celaro (Migration) [2018] AATA 5130 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bruno Celaro

CASE NUMBER:  1821937

DIBP REFERENCE(S):  BCC2018/2525687 BCC201812525687

MEMBER:Bridget Cullen

DATE:18 December 2018

PLACE OF DECISION:  Brisbane

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.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 18 December 2018 at 2:59pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – skills assessment – Quantity Surveyor (ANZSCO 233213) – incorrect indication on application – application for skills assessment made before application date – skills assessed on basis of qualification obtained in Australia as student – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 485.223, 485.224, rr 1.03, 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 10 July 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 5 July 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 they did not provide the department evidence that they had lodged an application for a skills assessment with the relevant authority prior to lodgement of their visa application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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’.

7. ‘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 18/051: Specification of Occupations and Assessing Authorities.

8. On the evidence before the Tribunal, the applicant nominated the occupation of Quantity Surveyor (ANZSCO 233213), which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Institute of Quantity Surveyors (AIQS).

9. When the applicant lodged his application on 5 July 2018, he did not provide evidence of an application for assessment of his skills for their nominated skilled occupation by a relevant assessing authority, and declared “no” to the question associated with same on the Application form.

10. The applicant, in a statement provided to the Tribunal on 16 August 2018, stated that he had ticked “no” by mistake, as he had in fact applied for the required skills assessment prior to lodging his application.

11. The Tribunal has also had regard to the declaration made by the visa applicant in his application for the visa, and accepts that the erroneous “no” answer was not intended to be misleading information or false.

12. When the Applicant lodged his review application with the Tribunal, he lodged evidence that he had applied for the relevant skills assessment, and that that application had been made on 4 July 2018, one day before he applied for the visa.

13. As the applicant has provided the Tribunal with evidence that he had applied for a skills assessment by the relevant assessing authority for his nominated skilled occupation, before applying for the visa, the Tribunal finds that the applicant satisfies cl.485.223.

    Has the applicant been assessed as suitable for the nominated occupation?

14. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A).

15. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

16. The assessment, which found the applicant to be suitable for the skilled occupation of Quantity Surveying (ANZSCO 233213), was completed on 10 July 2018. It indicates that the assessment is valid for two years from the date of the letter, which would be until 9 July 2020. At time of the Tribunal’s decision, the assessment is still valid.

17. Therefore the requirements of cl.485.224 are met.

    How and where was the qualification obtained?

18. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course (cl.485.224(2)). ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03).

19. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa. The qualification was obtained as a result of the applicant completing a Master of Construction Practice (Professional), from Bond University, awarded on 16 June 2018. The Tribunal has also confirmed that the applicant received the qualification whilst on a student visa. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

20. It follows that the applicant meets the requirements of cl. 485.224.

21. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.223 and 485.224 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.485.223 of Schedule 2 to the Regulations; and

    ·cl.485.224 of Schedule 2 to the Regulations.

    Bridget Cullen
    Member