MAUWA (Migration)

[2017] AATA 554

MAUWA (Migration) [2017] AATA 554 (21 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Elizabeth Tendai MAUWA

CASE NUMBER:  1514105

DIBP REFERENCE(S):  BCC2009/488485

MEMBER:D. Dimitriadis

DATE:21 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

·cl.886.223(1) of Schedule 2 to the Regulations.

Statement made on 21 April 2017 at 5:11pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 886 – Skills assessment – Computing Professional (nec) – Australian Computer Society – ICT Recent Graduate assessment – ASCO Code 2231-79 – Skills assessment obtained

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 886.223, r 1.03, r 1.15I, IMMI 12/068

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 1 October 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 December 2009. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 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 to grant the visa because the applicant did not satisfy cl.886.223 of Schedule 2 to the Regulations because the skills of the applicant have not been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.

4. The applicant appeared before the Tribunal on 31 March 2016 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets cl.886.223.

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

7. Clause 886.223(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

8. 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: r.1.15I. A ‘relevant assessing authority’ is a person or body specified by the Minister in the relevant instrument: r.1.03. The relevant instrument is IMMI 12/068.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Computing Professional (nec) (ASCO Code 2231-79) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Australian Computer Society. ASCO is the Australian Standard Classification of Occupations.

10. The applicant stated in the visa application that she had applied for a skills assessment of her skills for her nominated occupation of Computing Professional (nec) (ASCO Code 2231-79) with the assessing authority, Australian Computer Society, on 22 September 2009 and she provided the reference/receipt number.

11. On 16 June 2015 the Department wrote to the applicant and requested that she provide a number of documents including evidence of her skills assessment.  

12. On 17 September 2015 the applicant provided to the Department a letter dated 13 July 2015 from Australian Computer Society stating that the applicant’s skills have been assessed as suitable for migration under ANZSCO 135199 ICT Managers nec.

13. At the time of lodging the application for review with the Tribunal, the applicant provided a copy of the delegate’s decision record. The applicant stated in a letter dated 19 October 2015 that, at time she applied for the visa, she submitted the receipt to verify that she had sought assessment of her skills from Australian Computer Society (ACS). She received a positive skills assessment from ACS which she attached to the application for review.  The applicant provided a letter dated 3 December 2009 from ACS stating that her skills have been assessed as suitable for migration for ICT Recent Graduate (ASCO 2231-79).  The applicant stated that the Department requested that she provide documents including a skills assessment. She collected the requested paperwork and submitted her skills to ACS to have her skills reassessed. The applicant stated that, since 2009, the ACS no longer uses ASCO and uses ANZSCO, so she applied for a new skills assessment and was certified as an ICT Manager nec (ANZSCO 135199).

14. At the hearing the applicant stated that she had applied for the skills assessment in September 2009 before she applied for the visa.  At time of application she had not received her skills assessment yet. The skills assessment was dated 3 December 2009 which was before the date she applied for the visa on 7 December 2009. The applicant stated that she lodged a paper application for the Subclass 886 visa. She did not think to provide the skills assessment once she received it. 

15. The applicant stated that she is currently holding a Subclass 457 visa. The applicant stated that she is working in her field full-time.

16. The Tribunal has considered the evidence provided by the applicant. The applicant obtained a positive skills assessment dated 3 December 2009 from ACS under 2231-79 (ICT Recent Graduate). The applicant nominated the skilled occupation of Computing Professional and provided the ASCO code of 2231-79.

17. ASCO Code 2231-79 is the code for the occupation of Computing Professional nec. ASCO states that: ‘This occupation group covers Computing Professionals not elsewhere classified.’  ASCO further states: ‘Occupations in this group include’ Computer Analyst, Computer Scientist, Computing Tester, Database Analyst, and Local Area Network (LAN) Controller. The occupation of ICT Recent Graduate is not one of the five occupations listed. However, the occupation ICT Recent Graduate has the code 2231-79 which is the code for Computing Professional nec. The Tribunal is satisfied that the list of occupations under Computing Professional nec is not a closed list and can include other occupations with the same ASCO Code. ASCO states that occupations in this group of Computing Professionals not elsewhere classified include the five occupations but it does not state that other occupations are not included. The Tribunal finds that the occupation of ICT Recent Graduate with ASCO Code 2231-79 is included in Computing Professionals not elsewhere classified. The Tribunal finds that the applicant nominated an occupation with ASCO Code 2231-79. She obtained a skills assessment for that occupation code.

18. The Tribunal is satisfied that the relevant assessing authority, Australian Computer Society, has assessed the applicant’s skills for the nominated skilled occupation of Computing Professionals nec, which includes ICT Recent Graduate, under ASCO Code 2231-79 as suitable for that occupation.

19. The Tribunal finds that the applicant’s skills have been assessed by a relevant assessing authority as suitable for the nominated skilled occupation and that the applicant therefore satisfies the requirements of cl.886.223(1).

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

21. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

    ·cl.886.223(1) of Schedule 2 to the Regulations.

    D. Dimitriadis
    Member