LAU (Migration)

[2017] AATA 162

LAU (Migration) [2017] AATA 162 (2 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YING KIT LAU

CASE NUMBER:  1503983

DIBP REFERENCE(S):  BCC2014 2996859

MEMBER:Rania Skaros

DATE:2 February 2017

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.485.224 of Schedule 2 to the Regulations.

Statement made on 02 February 2017 at 9:28am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – cl 485.224 – Suitable Skills assessment – Qualification obtained in Australia – Studying a registered course

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 485.224
Education Services for Overseas Students Act 2000, s 9

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 9 March 2015 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 10 November 2014. 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 the applicant had not provided evidence that his skills had been assessed as suitable for the nominated skilled occupation of Accountant (General) ANZSCO 221111.

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

5. The Tribunal has since received evidence of a suitable skills assessment and is able to make favourable decision on the information before it without the need for a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. 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).

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

10. The applicant nominated the occupation Accountant (General) 221111 in his application. The delegate’s decision indicates that the applicant was requested to provide evidence of a suitable skills assessment for his nominated occupation and that the applicant had not provided the skills assessment within the period allowed.

11. Information before the Tribunal indicates that the request from the Department was incorrectly sent and had not been received by the applicant’s representative.

12. On review, the applicant provided the Tribunal with a CPA Australia assessment dated 29 December 2014. The assessment indicates that the applicant’s qualifications, the Master of Professional Accounting from the University of Canberra and Master of Economics from the University of Sydney, have been assessed for the purposes of the temporary visa Subclass 485, as suitable under ANZSCO 221111- Accountant (General).

13. The skills assessment does not specify a validity period. 

14. The Tribunal is accordingly satisfied that the applicant has been assessed during the last 3 years by the relevant assessing authority as suitable for the nominated skilled occupation.

15. Therefore the requirements of cl.485.224(1) are 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 section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03).

17. The applicant’s skills were assessed on the basis of qualifications obtained in Australia, the Master of Professional Accounting which he completed at the University of Canberra between February 2013 and May 2014 and Master of Economics at the University of Sydney between February 2004 and January 2005. Departmental movement records indicate that the applicant held student visas during the relevant periods. Information on the Department’s file also indicates that the qualifications were obtained as a result of studying a registered course.

18. Given the above, 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 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 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.485.224 of Schedule 2 to the Regulations.

    Rania Skaros
    Member