Guzman Mahecha (Migration)

[2021] AATA 2567

Guzman Mahecha (Migration) [2021] AATA 2567 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yuly Marcela Guzman Mahecha
Miss Danna Salome Murcia Guzman
Mr Guillermo Alfonso Murcia Oliveros

CASE NUMBER:  1923905

HOME AFFAIRS REFERENCE(S):          BCC2018/5233979

MEMBER:Wan Shum

DATE:4 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl 485.224 of Schedule 2 to the Regulations.

Statement made on 04 June 2021 at 3:08pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment – Accountant (General) – CPA Australia – not completed one of the competency areas – Business Law – qualification obtained – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 9 August 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 23 November 2018. 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 finding that the applicant did not satisfy cl 485.224 of Schedule 2 to the Regulations because the applicant did not provide evidence that her skills had been assessed as suitable for the nominated skilled occupation.

4. The applicants were initially represented in relation to the review by a registered migration agent, but later appointed a lawyer for the hearing.

5. The applicants appeared before the Tribunal on 4 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

   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 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. The issue in the present case is whether the applicant meets cl 485.224 which 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).

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

9. ‘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 IMMI 18/051.

10. In this case, the applicant nominated the occupation of Accountant (General) which is a specified skilled occupation and applied for an assessment of her skills to CPA Australia Pty Ltd, which is one of the relevant assessing authorities specified for this occupation.

11. The applicant applied for a skills assessment from CPA Australia Ltd (CPA) on 20 November 2018. The outcome of the assessment was issued on 29 March 2019 and she was found not to be academically suitable for migration under Accountant (General). This was because she was found not to have completed one of the competency areas, specifically Business Law. The outcome letter sets out the following options: to fulfil the above competency areas by completing accredited subjects with a recognised higher education provider or by completing the required CPA Program foundation exams.

12. From copies of the communications between the applicant and her representative with CPA, it appears that she objected to the outcome and was asked to provide a copy of the syllabus for both degrees. The applicant advised at the hearing that she was not successful. The applicant claimed that she had enrolled to undertake the Business Law subject at Torrens University and had paid the fee but for some reason, the subject did not run. She subsequently enrolled at MIT and, following completion of the subject, she was able to get a successful outcome from CPA. A copy of the assessment outcome indicates that it was issued in August 2020.

13. The Tribunal informed the parties that it was seeking verification of the outcome with CPA Australia. A response was received on 4 June 2021 after the hearing that the letter outlining the successful outcome was genuine.

14. The Tribunal finds that the applicant has been assessed during the last 3 years by CPA, which is a relevant assessing authority, as suitable for her nominated skilled occupation of Accountant (General). The assessment does not specify a validity period.

15. Therefore, the requirements of cl 485.224(1) are now met.

    How and where was the qualification obtained?

16. 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 s 9 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students’ (reg 1.03).

17. On the evidence before the Tribunal, the applicant’s skills were assessed partially on the basis of a qualification obtained in Australia, being the Master of Business Administration at Federation University of Australia. The course study dates provided by the applicant on the visa application form were that the course commenced on 1 January 2014 to 3 March 2017, although the eCOE indicates that the course commenced in March 2015 and the academic transcript appears to reflect that the applicant commenced study in 2015. The academic transcript gives the course completion date of 4 November 2016 with the award being conferred on 7 February 2017. It appears that the applicant undertook the course from March 2015 to November 2016. As to the visa held while completing this study, based on the information before the Tribunal the applicant has held successive student visas since 23 September 2011 with short gaps where she held a Bridging Visa. Therefore, it is necessary for the Tribunal to consider whether the qualification was obtained as a result of studying a registered course (cl 485.224(2)). The Federation University of Australia is registered to provide the course to overseas students, and the Tribunal finds that the qualification was obtained as a result of studying a registered course.

18. Therefore, the applicant satisfies the requirements of cl 485.224(2).

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

20. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 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

21. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.224 of Schedule 2 to the Regulations.

    Wan Shum
    Member