Lim (Migration)

[2017] AATA 154

Lim (Migration) [2017] AATA 154 (2 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cam Tuyen Lim

CASE NUMBER:  1617631

DIBP REFERENCE(S):  BCC2016/2751605

MEMBER:Jennifer Ciantar

DATE:2 February 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 02 February 2017 at 3:09pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Graduate Work) – Skills assessment – Accountant  – Post study work stream – Incorrect visa stream identified – Graduate Work stream – Relevant assessing authority – CPA Australia – Visa application preceded application for skills assessment – Assessment against two streams

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1, Schedule 2, r 1.15l, 2.26B, cl 485.223, cl 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 on 19 October 2016 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 19 August 2016. 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.485.223 of Schedule 2 to the Regulations because no evidence had been provided with the visa application that the applicant had applied for a suitable skills assessment.

4. The applicant appeared before the Tribunal on 20 December 2016 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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’.

10. ‘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.

11. On the evidence before the Tribunal, the applicant nominated the occupation of Accountant, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is CPA/ICAA/IPA.

12. On the visa application form, the applicant answered “no” in response to the question which asks if the applicant has applied to a relevant assessing authority for an assessment of his skills for the nominated skilled occupation.

13. The applicant has provided the Tribunal with a letter from CPA Australia which states that the applicant’s application was received on 20 August 2016 and he has been assessed as suitable for a Subclass 485 visa for the occupation of Accountant ANZSCO 221111.

14. In a submission received on 5 December 2016, the applicant’s representative states that the applicant incorrectly indicated he met the Graduate Work stream but he had intended to meet the post study work stream. The delegate has not assessed if the applicant meets this stream or if he can meet the secondary criteria.

15. The applicant stated at hearing that he had applied for a skills assessment to CPA, for his nominated occupation of accountant, on 20 August 2016, which was the day after he lodged the visa application. He had lodged the visa application himself and he did not realise at the time that he had applied for the wrong stream. He had not thought that he required a skills assessment because he came to Australia in August 2012 and he had intended to undertake a professional year. He would not deliberately have chosen to apply for the stream that would give him the visa for a shorter period of time.

16. The applicant confirmed that he now believes that he applied for the wrong stream, as he should have applied for the post study work stream, and he is asking the Tribunal to assess his application under this stream. The Tribunal put to the applicant that item 1229(j) requires an applicant to only nominate one stream. The applicant’s representative reiterated arguments put to the Tribunal in a written submission. He stated that the application lodged was still a valid application and having selected the wrong stream does not make the application invalid. The applicant meets the requirements for the post study work stream as he studied at Macquarie University for two years. There is an obligation on the Tribunal to assess the applicant against both streams. The representative also referred to the requirements of r.2.03(1A).

17. The Tribunal has considered all the evidence including the applicant’s submissions and his oral evidence that he applied for the wrong stream, and that the Tribunal is not precluded from assessing the applicant against both streams. The Tribunal acknowledges that the Temporary Graduate Subclass 485 visa also contains the Post-Study Work Stream. However, the Schedule 1 requirement in Item 1229(3)(j) provides that applicants “must nominate only one stream to which the application relates”. In this case, on the application, the applicant nominated the Graduate Work stream and the Tribunal is of the view that item 1229(3)(j) prevents the application from being considered to be a valid application in the Post-Study Work stream. The wording of item 1229(3)(j) indicates to the Tribunal that the intention is that an applicant is only assessed against the stream that he has nominated, and in this case that is the Graduate Work stream.

18. The Tribunal has assessed the applicant against the criteria for the Graduate Work stream as nominated on the visa application. The written and oral evidence before the Tribunal is that the applicant applied for a skills assessment on 20 August 2016, the day after he lodged the visa application and that he had not applied for a skills assessment by the time he lodged the visa application.  The Tribunal finds that when the application was made it was not accompanied by evidence that the applicant had applied for a skills assessment.

19. 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.

20. 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

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

    Jennifer Ciantar
    Member