Kamel (Migration) - [2020] AATA 463

Kamel (Migration) [2020] AATA 463 (7 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Christian Kamel
CASE NUMBER:  1924834
HOME AFFAIRS REFERENCE(S):          BCC2019/3632429
MEMBER:Catherine Carney-Orsborn
DATE:7 January 2020
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 criterion for a Subclass 485 visa:
·cl.485.231 of Schedule 2 to the Regulations

Statement made on 07 January 2020 at 9:28am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work Stream – Civil Engineer – inadvertently stated skills assessment not completed –requirement for post-study stream at time of application met – credible witness – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15, 2.26B, Schedule 2, cl 485.231

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 September 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 July 2019. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.231
The delegate refused the visa because the applicant did not satisfy cl.485.223 of Schedule 2 to the Regulations as the applicant chose the Graduate Work stream and answered ‘no’ to the question on the lodgement form which asked if he had applied to a relevant assessing authority for an assessment of his skills for his nominated skilled occupation.
The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. The issue in the present case is whether the applicant meets those requirements.
Had the applicant applied for a relevant skills assessment?
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’.
‘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).
On the evidence before the Tribunal, the applicant nominated the occupation of Civil Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia.
The Tribunal has the Department’s file before it. The file contains the application lodged with the Department by the applicant. In regards to the question whether he had applied to a relevant assessing authority for an assessment of his skills for the nominated skilled occupation, he responded ‘no’.
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.
The applicant provided oral evidence at a hearing. He claims that he simply made a mistake and he has fulfilled all the criteria. He stated ‘no’ to the question in relation to skills assessment as he thought he had applied for the other stream.
The applicant provided detailed submissions and a written statement.
The Tribunal will consider substantial compliance and whether the applicant satisfied the stream cl.485.231.
The independent corroborative evidence before the Tribunal held on the Department file and the Tribunal file indicates that the applicant did meet the requirement for the post-study stream at the time of application. He supplied all the information necessary for the grant of the post-study visa. He gave oral evidence which was credible and corroborated the information held on the Department file. The applicant filed the application on the 22 July 2019 and the Department’s decision was made less than six weeks later on 2 September 2019. The applicant was not aware that he had made the error and was not alerted to the fact that he may have made the error which would have automatically invalidated his application. The Tribunal is not satisfied that a person who is educated would have answered No to a question on the application form on which he had spent time, effort and significant financial resources to complete and comply with which, then automatically invalidated his application. The Tribunal on the evidence is satisfied his intention was to apply for the post-study stream.
The applicant has completed a Bachelor’s degree (Honours). He completed a Bachelor of Engineering (Honours) at the University of Technology Sydney in 15 July 2019.
Cl.485.231(1) requires the applicant to hold a qualification of a kind specified in a relevant written instrument. The relevant instrument is IMMI 13/013.
Evidence on the Department file indicates that the applicant has a Bachelor of Engineering (Honours) from University of Technology Sydney. This is a qualification of a kind specified in the applicable written instrument.
Cl.485.231(2) requires that the qualification was conferred or awarded by an educational institution specified in a relevant written instrument which is IMMI 13/031. The University of Technology Sydney is a CRICOS Provider.
Cl. 485.231(3) requires that the applicant’s study for the qualification satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made. The applicant was awarded his Bachelor’s Degree in 15 July 2019. He lodged his application on 22 July 2019.
Movement records indicate that the applicant held a student visa while he undertook his studies.
The Tribunal is satisfied that the applicant meets cl.485.231.
After considering all the evidence before it the Tribunal is satisfied that the applicant has substantially complied with the visa application for the intended stream “Post Study Work Stream”.
On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.231 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
The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:
·cl.485.231 of Schedule 2 to the Regulations.
Catherine Carney-Orsborn
Member

Details

AGLC: Kamel (Migration) [2020] AATA 463
Case: [2020] AATA 463
Decision Date: 7 January 2020

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work Stream, by Mr Kamel. The applicant sought review of a decision concerning his eligibility for the visa. The central dispute revolved around whether the applicant had met the requirement to have applied for a skills assessment for his nominated occupation, Civil Engineer, at the time of lodging his visa application. The decision was made by Catherine Carney-Orsborn.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 485.223 of Schedule 2 to the Migration Regulations 1994, which mandates that a visa application must be accompanied by evidence of an application for a skills assessment by a relevant assessing authority for the nominated skilled occupation. The applicant had answered "no" to this question on his application form, which, on its face, meant he did not meet this criterion. The Tribunal also considered whether the applicant met the requirements of clause 485.231, relating to the post-study stream.

The Tribunal found that while the applicant had answered "no" to the skills assessment question, this was due to an inadvertent mistake. The applicant provided credible oral evidence, supported by documentary evidence on the Department's and Tribunal's files, indicating that he had, in fact, met the requirements for the post-study stream at the time of his application. The Tribunal was satisfied that the applicant's intention was to apply for the post-study stream and that he had supplied all necessary information for this purpose. Given the applicant's demonstrated intention and the corroborating evidence, the Tribunal concluded that the applicant met the requirements of clause 485.231.

Consequently, the Tribunal remitted the applicant's visa application for reconsideration by the Minister, with a direction that the applicant meets the criterion specified in clause 485.231 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. The issue in the present case is whether the applicant meets those requirements.Had the applicant applied for a relevant skills assessment? 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’. ‘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). On the evidence before the Tribunal, the applicant nominated the occupation of Civil Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia. The Tribunal has the Department’s file before it. The file contains the application lodged with the Department by the applicant. In regards to the question whether he had applied to a relevant assessing authority for an assessment of his skills for the nominated skilled occupation, he responded ‘no’. 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. The applicant provided oral evidence at a hearing. He claims that he simply made a mistake and he has fulfilled all the criteria. He stated ‘no’ to the question in relation to skills assessment as he thought he had applied for the other stream. The applicant provided detailed submissions and a written statement. The Tribunal will consider substantial compliance and whether the applicant satisfied the stream cl.485.231. The independent corroborative evidence before the Tribunal held on the Department file and the Tribunal file indicates that the applicant did meet the requirement for the post-study stream at the time of application. He supplied all the information necessary for the grant of the post-study visa. He gave oral evidence which was credible and corroborated the information held on the Department file. The applicant filed the application on the 22 July 2019 and the Department’s decision was made less than six weeks later on 2 September 2019. The applicant was not aware that he had made the error and was not alerted to the fact that he may have made the error which would have automatically invalidated his application. The Tribunal is not satisfied that a person who is educated would have answered No to a question on the application form on which he had spent time, effort and significant financial resources to complete and comply with which, then automatically invalidated his application. The Tribunal on the evidence is satisfied his intention was to apply for the post-study stream.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.231 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 The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:·cl.485.231 of Schedule 2 to the Regulations.Catherine Carney-OrsbornMember

Ratio Decidendi

Legal Principle Established

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