Chand (Migration)

[2023] AATA 4447

Chand (Migration) [2023] AATA 4447 (24 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravneet Chand

CASE NUMBER:  2116677

HOME AFFAIRS REFERENCE(S):          BCC2020/1992806

MEMBER:George Hallwood

DATE:24 November 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 24 November 2023 at 12:03pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Electrical Engineering Draftsperson – skills assessment – request for extension of time refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15I; Schedule 2, cl 485.224

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 Home Affairs on 26 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 July 2020. Visa Class VC contains Subclass 485. 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.

3. The delegate refused the visa because the applicant did not satisfy cl 485.224(1) of Schedule 2 to the Regulations because they were not satisfied that the applicant’s skills assessment was for the nominated skilled occupation of Electrical Engineering Draftsperson 312311.

4. The applicant appeared before the Tribunal on 27 October 2023 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 which include cls 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. Neither of these requirements apply if the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 30 July 2020. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223(1) 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 reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument LIN 19/051.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Electrical Engineering Draftsperson with the ANZSCO code 312311 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia.

10. At the hearing Mr Chand told the Tribunal that when he applied for his visa he did not realise it was for Electrical Engineering Draftsperson. He said that he is now trying to follow a pathway into becoming qualified as a Civil Draftsperson.

11. On his visa application form dated 30 July 2020, Mr Chand identified that he had his skills assessed by Engineers Australia for the nominated occupation of Electrical Engineering Draftsperson on 20 July 2020 and he provided the reference/receipt number 8358584.

12. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant satisfies the requirements of cl 485.223(1).

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

13. 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).

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

15. Following a request from the Department the applicant provided, on 15 December 2020, a Skills Assessment Report dated 31 July 2020 from Engineers Australia declaring that the applicant’s skills were successfully assessed against the occupation of Mechanical Engineering Draftsperson which has the ANZSCO code 312511.

16. Mr Chand nominated the occupation Electrical Engineering Draftsperson with the ANZSCO code 312311 in his application for a subclass 485 Temporary Graduate (Graduate Work) visa in the Graduate Work stream. Electrical Engineering Draftsperson is identified by the Minister as a separate occupation to Mechanical Engineering Draftsperson. Electrical Engineering Draftsperson is listed in the “Medium and Long Term Strategic Skills” list in the instrument and Mechanical Engineering Draftsperson is listed in the “Regional Occupations” list. Mr Chand did not nominate Mechanical Engineering Draftsperson in his application.

17. At the hearing when the Tribunal asked Mr Chand if he had been assessed by Engineers Australia in the last three years as having skills suitable for the occupation of Electrical Engineering Draftsperson, he told the Tribunal that he had not. He told the Tribunal that he needed time to finish his studies and complete his assessment. He said that his current work as a 3D Draftsperson was more Civil Drafting than Electrical. He said that he would need to complete another 6 units with TAFE to qualify as an Electrical Engineering Draftsperson.

18. At the hearing Mr Shand requested extra time to complete his studies and revisit his skills assessment. The Tribunal considered this request and told the applicant that an extension of time that was purely in the hope of Mr Shand successfully completing his studies some time in the future with the aim of one day being successfully assessed by Engineers Australia as an Electrical Engineering Draftsperson. The request for extra time to complete studies in order to obtain the qualifications for the occupation nominated is not the role of the Tribunal in reviewing the decision and does not fit within the objectives of the Tribunal to provide accessible, fair, just, economical, informal, quick and proportionate conduct of reviews. Mr Shand also requested extra time to obtain legal advice. The Tribunal considered this request but found that there was little likelihood that legal advice could result in a different outcome for him, also that Mr Chand had plenty of notice of the hearing in which he could have obtained advice. Mr Shand requested an extra week to provide the Tribunal with further information about his employment. This was granted but Mr Shand did not provide any further information to the Tribunal.

19. There is no evidence before the Tribunal that Mr Shand has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation.

20. Therefore, the requirements of cl 485.224(1) and (1A) are not met.

    Conclusion on Suitable Skills Assessment

21. It follows that the applicant does not meet the requirements of cl 485.224.

    CONCLUDING PARAGRAPHS

22. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    George Hallwood
    Member