Lao (Migration) - [2019] AATA 5587

Lao (Migration) [2019] AATA 5587 (11 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lirashen Lim Lao
CASE NUMBER:  1908516
DIBP REFERENCE(S):  BCC2019/257377
MEMBER:Catherine Carney-Orsborn
DATE:11 December 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 11 December 2019 at 3:53pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment – nominated occupation – ICT Sales Representative – clerical error – ICT Business Analyst – ascertaining the applicant’s intended nominated occupation – positive assessment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.223, 485.224
CASES
Pavuluri v MIBP [2014] FCA 502
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 Immigration on 5 April 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 29 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.
The delegate refused the visa because the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because she did not provide a skills assessment for the nominated occupation.
The applicant appeared before the Tribunal on 3 December 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 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?
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). The relevant instrument is Legislative Instrument IMMI 18/051.
At hearing the applicant stated that she had made an error in her application. She had wanted to put her nominated occupation as ICT Sales Representative however due to a clerical error she had inadvertently hit ICT Business Analyst. She said that as the occupations in the drop down box online are one after the other both starting with ICT it was a clerical error. The Tribunal has considered the caselaw on whether a change can be made to the nominated occupation as set out below.
“For example, in Pavuluri the Tribunal expressed the view that, in principle, there may be circumstances in which it could find the nominated occupation on the visa application form to be something other than what was stated, if there was evidence to support a different characterisation of the nominated occupation at the time of the visa application, but found that this was not such a case.[1] While the Court did not reach a concluded view, it appears to have tentatively accepted the Tribunal’s opinion, i.e. that it may be able to examine other evidence or material to clarify or explain precisely which occupation an applicant intended to specify.[2]
Tribunal’s opinion, i.e. that it may be able to examine other evidence or material to clarify or explain precisely which occupation an applicant intended to specify.[3]
Thus, while not free from doubt, it may be possible to find, as a matter of fact, that the occupation specified in the application form is not (and was not) the nominated occupation. However having regard to the concept of nominating an occupation as a requirement of a valid visa application, and the terms of the application form (‘What is your nominated occupation?’) the circumstances in which this may be open would appear to be narrowly confined. In considering this question, the applicant’s explanation for the mistake would be relevant. Other relevant factors may include the match (or mismatch) between the occupations in question and the applicant’s qualifications and experience, the skills assessment sought, and the relevant assessing authority specified on the application form.[4] It may not necessarily be enough that the applicant ‘made a mistake’ as a result of incorrect advice or lack of legal advice when completing the form.[5] However a finding that the mistake was in the nature of a clerical error may support a conclusion that the nominated occupation was other than as specified in the application form.[6]”
[1]Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [21]. In that case the appellant had explained that he had been ill-advised as to the appropriate occupation to nominate for his degree and, relying on s 105, asked the Tribunal to allow him to correct his occupation (from ‘finance manager’ to ‘market research analyst’) as he had made a mistake. The Tribunal found that the evidence did not support a finding that he had intended to nominate an occupation other than ‘finance manager’ and had made a ‘mistake’. It found that his only ‘mistake’ was that, having recorded in his application the occupation he intended to specify, he subsequently discovered he had been ill-advised. The Court observed that while in colloquial terms that was a mistake, it was not a mistake in the sense of specifying on the visa application an occupation the appellant did not intend to specify, or a mistake of the kind capable of correction under s.105.
[2] Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [33].
[3] Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [33].
[4] In obiter comments the Court in KC v MIAC [2013] FCCA 296 (Cameron J, 17 May 2013) at [17] noted that a finding a mistake had been made was open to the Tribunal given an application for a skills assessment in respect of the ‘correct’ occupation had been made shortly prior to the lodgement of the visa application.
[5] E.g. Chen v MIAC [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011) and Pavuluri v MIBP [2014] FCA 502 (Mortimer J, 16 May 2014).
[6] See the example provided in Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [49], of a wrong skills assessment receipt number or reference number entered because of a typographical error.
She said she had applied for a skills assessment for ICT Sales Representative on the same date she lodged her application and provided a receipt to the Department.
After the hearing the applicant provided further information to the Tribunal.
The applicant provided a document which shows that on the same date, 29 January 2019, she lodged her application for her Graduate work 485 visa she had applied for a skills assessment for the occupation ICT Sales Representative. She had no further correspondence with the Department which may have alerted her to her error and the Department made their decision after the skills assessment for ICT Sales Representative was provided to them.
The Tribunal has checked the reference/receipt number she provided to the Department against the document she provided. The receipt number she provided in her application lodged on the 29 January 2019 is the same receipt number on the application she made on 29 January 2019 for ICT Sales Representative.
The applicant provided proof of her studies. She studied a Bachelor of Commerce majoring in Marketing. She is currently working as an ICT Sales Representative and provided employers references.
Given the strong evidence before the Tribunal in relation to her intentions. The Tribunal is satisfied that, on the evidence before it, she intended to apply for ICT Sales Representative and not ICT Business Analyst.
On the evidence before the Tribunal, the Tribunal finds that the applicant’s intention was to nominate the occupation of ICT Sales Representative which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is VETASSESS.
The applicant provided a copy of a VETASSESS positive skill assessment dated 18 February 2019 for the position of ICT Sales Representative.
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?
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).
There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.
The applicant obtained a Bachelor degree from Macquarie University while on a student visa. On the evidence before it, the Tribunal is satisfied that the applicant has been assessed as suitable for the nominated occupation during the last 3 years by a relevant assessing authority.
Therefore the requirements of cl.485.224 are met.
How and where was the qualification obtained?
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, to provide the course to overseas students’ (r.1.03).
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).
It follows that the applicant meets the requirements of cl.485.224.
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
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.
Catherine Carney-Orsborn
Member