Cumaranayagam (Migration)

[2018] AATA 2203

Cumaranayagam (Migration) [2018] AATA 2203 (24 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shahana Cumaranayagam

CASE NUMBER:  1724643

DIBP REFERENCE(S):  BCC2017/2896866

MEMBER:Sheridan Lee

DATE:24 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 April 2018 at 4:54pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Telecommunications Network Engineer (ANZSCO 263312) –Skills assessment was not undertaken for the nominated skilled occupation – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.15l, Schedule 2, cl 485.223

CASES
Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 25 September 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 13 August 2017. 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 (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 when the application was made, it was not accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation of Telecommunications Network Engineer (ANZSCO 263312).

4. On 23 March 2018, the Tribunal wrote to the applicant to invite her to appear before the Tribunal at a hearing on 13 April 2018. On 2 April 2018, the applicant responded to the invitation to advise that she had returned to her homeland of Sri Lanka and requested that the Tribunal proceed to make a decision in her absence. The applicant annexed a copy of a skills assessment undertaken by the Australian Computer Society, dated 24 November 2017.

5. The Tribunal did not consider a hearing to be necessary in this case as the applicant provided consent to the Tribunal deciding the review without the applicant appearing before it, in accordance with s.360(2)(b) of the Act.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 of Schedule 2 to the Regulations. This criteria is 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.

8. In undertaking this assessment, the Tribunal is aware that there is no formal onus of proof associated with administrative inquiries and decision-making. However, the Courts have held that it is for an applicant seeking a particular outcome to put forward material in as much detail as is necessary to enable a decision-maker to establish the relevant facts. It is not for the Tribunal to fill any gap or make out the applicant’s case.[1]

   [1] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30.

   Had the applicant applied for a relevant skills assessment?

9. 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’.

10. ‘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 IMMI17/072.

11. The applicant completed a Bachelor of Engineering (Computer and Network Engineering) with Honours at RMIT University in July 2017. Following completion of this qualification, the applicant lodged an application for a Subclass 485 visa.

12. The Tribunal has before it the visa application form, on which the applicant nominated the occupation of Telecommunications Network Engineer. Telecommunications Network Engineer is a specified skilled occupation, with the relevant assessing authority specified as Engineers Australia. On the application form, the applicant listed the ‘Date of Skills Assessment’ as 13 August 2017 and provided a receipt number for the booking to undergo the skills assessment with Engineers Australia.

13. On 5 September 2017, the delegate requested a copy of the skills assessment from the applicant. On that same day, the applicant responded to advise that she had applied for the skills assessment on 13 August 2017, however she was yet to receive the assessment results. This email was accompanied by a receipt dated 13 August 2017 as evidence that the applicant had applied for a skills assessment from Engineers Australia. The receipt does not list the occupation for which the applicant has applied for the assessment of suitability.

14. On 22 September 2017, Engineers Australia issued a skills assessment stating that the applicant’s qualification from RMIT University meets the current requirement for the occupation of Computer Network and Systems Engineer (ANZSCO 233999).

15. The applicant has supplied the Tribunal with a statement in support of her application, dated 10 October 2017. The statement outlines that the applicant –

    strongly believes that my nominated skill occupation, “Telecommunication Network Engineer” (ANZ[S]CO 263312) closely resembles “Computer Network and System Engineer” (ANZ[S]CO 233999).

16. The applicant has made no assertion that she applied to Engineers Australia for a skills assessment for the nominated occupation.

17. The Tribunal accepts that there may be similarities between the tasks and required skills of the two occupations. However, the Tribunal is required to be satisfied that cl.485.233 is met, and that it is met in the way set out in its clear wording. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.233, regardless of the reasons the applicant may have for not obtaining an assessment of her skills for the nominated occupation.

18. In response to the hearing invitation, the applicant provided the Tribunal with an additional skills assessment from the Australian Computer Society, dated 24 November 2017. The assessment outlines that the applicant’s skills ‘have been assessed as suitable for migration under 263111 (Computer Network and Systems Engineer) of the ANZSCO code.’

19. The Tribunal finds that this assessment was also not undertaken for the nominated skilled occupation of Telecommunications Network Engineer. Further, no evidence was submitted to establish when the applicant applied for the skills assessment, or that her visa application was accompanied by evidence that the application for the assessment was made.

20. 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.

21. 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

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

    Sheridan Lee
    Member