Huang (Migration)

[2019] AATA 3313

Huang (Migration) [2019] AATA 3313 (26 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kai Huang

CASE NUMBER:  1914478

DIBP REFERENCE(S):  BCC2019/285680

MEMBER:Jennifer Cripps Watts

DATE:26 July 2019

PLACE OF DECISION:  Sydney

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 26 July 2019 at 9:04am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Registered Nurse – skills assessment – application accompanied by required evidence – assessed as suitable for nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I; Schedule 2, cls 485.223, 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 Immigration (the delegate) on 5 June 2019 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 31 January 2019. 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.485.224 of Schedule 2 to the Regulations because he did not provide a skills assessment with his visa application.

4. On 6 June 2019 a review application was made and the applicant provided the Tribunal with a copy of the delegate’s decision.

5. The applicant was represented in relation to the review by his registered migration agent.

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 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?

8. 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’.

9. ‘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.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Registered Nurse which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is the Australian Nursing and Midwifery Accreditation Council Limited (ANMAC).

11. In the visa application, the applicant indicated that he had applied for an ANMAC skills assessment on 30 January 2019 and provided a reference number, 99565.

12. It is noted in the delegate’s decision that on 8 April 2019 the visa application was assessed by an officer of the Department and evidence of the skills assessment was requested, in writing.  The applicant was given 28 days to respond to the email that was sent to him.  By 5 June 2019, no response had been received and the delegate, justifiably in the Tribunal’s view, refused the visa on the basis that the applicant did not meet cl.485.224 because he had not responded to the request for, no had he provided, a positive skills assessment.

13. The applicant had not provided a skills assessment with his review application so, on 16 July 2019, the Tribunal wrote to him reminding him that he needed a positive skills assessment and requesting that he provide the information by 30 July 2019.  In response, attached to an email dated 17 July 2019, the applicant provided a copy of a ‘Determination for Migration Purposes Regarding the Assessment of Nurse/Midwives that hold Australian or New Zealand Registration’ issued by ANMAC on 21 June 2019.  It is noted that it is dated after the date the visa was refused which may explain why it was not provided when requested by the delegate.

14. 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.

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

15. 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).

16. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.  Referring to Department records, the Tribunal is satisfied that the applicant held a student visa at the relevant times.  The ANMAC assessment, for migration purposes, is dated 21 June 2019, indicating the skills of the application for his nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

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 (ESOS), to provide the course to overseas students’ (r.1.03).  The list of registered courses appears in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) is kept under s.10 of the ESOS.

19. The applicant provided copies of his relevant qualification and academic transcript with the visa application.  They are on the Department file.  Referring to those documents, the Tribunal is satisfied that he completed a Bachelor of Nursing at the Australian Catholic University in Sydney as a result of study undertaken between 2014 and 2018.  The course was completed on 7 December 2018.

20. The Tribunal has checked CRICOS and confirms that the Australian Catholic University is a registered provider, code 00004G, that offers a Bachelor of Nursing degree of 156 weeks’ duration.

21. 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.  As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

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

23. 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

24. 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.

    Jennifer Cripps Watts
    Member