Chum (Migration)

[2018] AATA 1575

Chum (Migration) [2018] AATA 1575 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Surbhi Chum

CASE NUMBER:  1708604

DIBP REFERENCE(S):  BCC2017/674482

MEMBER:Cathrine Burnett-Wake

DATE:19 April 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 19 April 2018 at 2:35pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream - Whether the applicant has a skills assessment from the relevant assessing authority – Accountant (General) – Whether the applicant intended to apply under the Post-Study Work stream – Genuine mistake in application – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, Schedule 1, Schedule 2, cls 485.223, 485.231(1)

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 13 April 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 19 February 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). 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 did not apply for the required skills assessment with the appropriate authority prior to lodgement of her visa application.

4. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments.

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

   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 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?

7. 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’.

8. ‘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 2016/060.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Accountant (General) which is a specified skilled occupation. For that occupation, there are several relevant assessing authorities that are specified, being: Certified Practising Accountants Australia; Chartered Accountants Australia and New Zealand; and the Institute of Public Accountants.

10. On the online application form the applicant declared ‘no’ to the question ‘Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?’

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

11. During the hearing the Tribunal asked the applicant why she had not applied for a skills assessment from a relevant authority prior to applying for the Subclass 485 visa, as was required for the ‘Graduate Work Stream’ that she had applied under.

12. The applicant outlined that she had intended to apply for a ‘different visa’, one that did not require the skills assessment, which she knew she was eligible for on the basis of successfully completing her Bachelor Degree. The applicant outlined she did not obtain migration assistance when completing the online application for the Subclass 485 visa and it was a simple mistake to select the stream that required a skills assessment. She outlined it was never her intention to apply for the stream she did, and that is also why she never applied for a skills assessment before lodging the visa application, as she knew she didn’t need it.

13. Based on the testimony provided by the applicant to the Tribunal at hearing, it is persuaded that the applicant never intended to apply under the Graduate Work Stream; rather she intended to apply for the Post-Study Work Stream that did not require a skills assessment.

14. 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.

15. 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.

16. 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.

17. 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:

    ·     Bachelor Degree;

    ·     Bachelor (Honours) Degree;

    ·     Masters by Coursework Degree;

    ·     Masters by Research Degree;

    ·     Masters (Extended) Degree and/or;

    ·     Doctoral Degree

18. Evidence before the Tribunal is that the applicant successfully completed a Bachelor of Business (Accounting) from Cambridge International College Australia on 28 November 2016.

19. 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.

20. 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.

    DECISION

21. 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.

    Cathrine Burnett-Wake
    Member