Jiang (Migration)

[2017] AATA 964

Jiang (Migration) [2017] AATA 964 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yumeng Jiang

CASE NUMBER:  1702760

DIBP REFERENCE(S):  BCC2016/3240145

MEMBER:D. Dimitriadis

DATE:7 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2017 at 1:37pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Skills assessment – Accountant (General) – Reference number of assessment provided – Assertions by applicant not equivalent to evidence – Delay of 249 days – Application  not accompanied by evidence

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.223, cl 485.224, r 1.03, r 1.15l, r 2.26B

CASES

Anand v MIAC [2013] FCA 1050
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523

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 14 February 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 29 September 2016. 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.485.224 of Schedule 2 to the Regulations because the delegate was not satisfied 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.

4. The applicant appeared before the Tribunal on 5 June 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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 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’. Clause 485.223 provides:

   485.223

   When the 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 16/059.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Accountant (General) (ANZSCO 221111) which is a specified skilled occupation. For that occupation, the relevant assessing authorities specified are Certified Practising Accountants Australia, Institute of Chartered Accountants of Australia and Institute of Public Accountants.

11. The applicant stated in the visa application that she had applied for a skills assessment on 1 August 2016 with the Institute of Chartered Accountants of Australia and she provided the receipt/reference number 657408. 

12. On 1 April 2016 the Department of Immigration and Border Protection (the Department) wrote to the applicant and invited her to provide further information within 28 days, including a certified copy of her skills assessment issued by the relevant skills assessment body.

13. Following a request for an extension of time by the applicant’s representative, the Department wrote to the applicant on 6 January 2017 and agreed to an extension of time until 10 February 2017.

14. The delegate refused the visa on the basis that the applicant did not satisfy cl.485.224.

15. At the time of lodging the application for review with the Tribunal on 17 February 2017, the applicant provided a copy of the delegate’s decision record.

16. At the hearing the Tribunal informed the applicant of the requirements of cl.485.223 and cl.485.224. The applicant provided to the Tribunal a positive skills assessment dated 5 June 2017 for the occupation of Accountant (General) (ANZSCO 221111) by Chartered Accountants Australia and New Zealand. The Tribunal asked the applicant if, when the 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. The applicant stated that they had submitted an application for a skills assessment before the visa application was made. The Tribunal asked the applicant whether the visa application 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. The representative stated that they put the reference number in the visa application. They did not provide a copy of the receipt to the Department. The representative stated that the reference number is evidence. The Tribunal informed the applicant that it may not accept that putting a reference number or receipt number in the visa application is evidence accompanying the application.

17. The Tribunal allowed until 6 June 2017 for further evidence and/or submissions to be provided.

18. On 5 June 2017, the Tribunal received an email from the representative who provided a copy of the visa application form and an extract from the Department’s Policy (PAM). The representative stated that with regards to cl.485.223, the applicant answered “yes” and “accompanied the reference No for skill assessment of Accountant General on the 485 visa application form.” (sic) The representative stated that the applicant satisfied cl.485.223 and provided the evidence that the skills assessment has been applied for at the time of application.

19. In the Department’s Procedures Advice Manual (PAM) it states:

    To satisfy 485.223, the applicant should enclose with their visa application evidence that they have applied to the relevant assessing authority to have their skills assessed. For example, an acknowledgment letter from a relevant assessing authority or a ‘yes’ answer accompanied by a reference number on the visa application form.

20. It appears that the Department’s policy as set out in PAM is that the Department will accept a ‘yes’ answer accompanied by a reference number on the visa application form.

21. The Tribunal has carefully considered the Department’s policy which is to accept that a ‘yes’ answer and a reference number on the visa application will satisfy cl.485.223. However, the Tribunal is not satisfied that assertions in a visa application are evidence that accompanied the visa application. The Tribunal is satisfied that the answers in the visa application that the applicant applied for a skills assessment and the reference number are assertions and are not evidence accompanying the visa application.

22. The Tribunal has had regard to the judgment in Nguyen v Minister for Immigration & Anor [2016] FCCA 1523 (Nguyen’s case) of the Federal Circuit Court of Australia (Burchardt J). In relation to whether the answers on the visa application form constituted “evidence”, the Court stated at paragraph 35:

    It should be noted that neither the Applicant nor the First Respondent has suggested that the answers the Applicant herself provided at CB1 and CB9 constitute evidence in the relevant sense.  It seems to be accepted that these are to be taken to be merely assertions by the Applicant rather than supporting evidence.

23. The Tribunal finds that the assertion in the visa application, that the applicant had applied for a skills assessment and included the reference number, is not evidence accompanying the visa application.

24. The question of what is meant by 'accompanied by' was considered by the Federal Court of Australia in Anand v MIAC [2013] FCA 1050. The case involved a consideration of cl.487.216 which required that the application be ‘accompanied by’ evidence that the applicant (and each person included in the application who is at least 16 years old) had applied for an Australian Federal Police check during the 12 months immediately preceding the day the application is made. The Federal Court of Australia (Katzmann J) held (at paragraph 28) that it was “prepared to accept that evidence accompanying an application could be supplied after the application is lodged.” However, the Court held that there must still be “some temporal connection with the application”, and evidence “supplied around the time of application may be sufficient.”

25. The Tribunal has also had regard to Nguyen’s case in which the Federal Circuit Court of Australia (Burchardt J) held that the words 'accompanied by' in the context of a Subclass 485 visa application seem to be expressed in terms that make it “imperative that the evidence required “accompanies” the application itself.  This is because of the use of ‘when the application was made, it was accompanied.’”

26. In Nguyen's case, the applicant had provided details in the visa application of the skills assessment by the relevant assessing authority with an assessment date and a reference number (although the number was identified before the Court as false). Later, the applicant provided a receipt for the skills assessment and subsequently provided a skills assessment. In that case, Burchardt J upheld the decision of the Tribunal (differently constituted) that held that a 29 day gap was too great between the date of the visa application and the evidence regarding the skills assessment.

27. The Tribunal has had regard to the above authorities which suggest that, even if it is possible to submit documents after the application was made and not at the same time when the application is made, there must still be a temporal connection between the application and the documents that accompany it. Clause 485.223 also has a requirement that the evidence must accompany the application ‘when the visa application was made’. In the Tribunal's view, this supports the interpretation that the evidence must be submitted at, or “around the time of the application”.

28. There is no evidence before the Tribunal that when the 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.

29. On 5 June 2017 the representative provided to the Tribunal a number of documents including an invoice from the Institute of Chartered Accountants dated 1 August 2016 and emails between the representative and Chartered Accountants Australia and New Zealand in July and August 2016. The applicant did not provide evidence to the Department prior to the decision being made to refuse the visa on 14 February 2017 that she had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

30. The Tribunal finds that the provision by the applicant of evidence to the Tribunal on 5 June 2017 that the applicant had applied for an assessment of her skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’, does not meet the temporal requirement. The number of days, from the date of the application on 29 September 2016 to the date (5 June 2017) that the applicant provided the evidence that she had applied for an assessment of her skills, was 249 days.

31. The Tribunal finds that this delay of 249 days in providing the evidence that the applicant had applied for an assessment of her skills means that when the application was made, it was not accompanied by evidence that the applicant had applied for a skills assessment.

32. In this case, although there is evidence before the Tribunal that the applicant had applied for the skills assessment before she applied for the visa, the visa application was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority.  

33. 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.

34. Although the applicant has a positive skills assessment, she does not meet cl.485.223 and does not meet the requirements for the grant of a Subclass 485 visa.

35. 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

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

    D. Dimitriadis
    Member