Musumba (Migration)

[2019] AATA 1210

Musumba (Migration) [2019] AATA 1210 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Irene Esther Achando Musumba

CASE NUMBER:  1904257

DIBP REFERENCE(S):  BCC2019/22393

MEMBER:Bridget Cullen

DATE:13 May 2019

PLACE OF DECISION:  Brisbane

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 13 May 2019 at 5:19pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – Registered Nurse – qualification obtained in Australia – evidence provided – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000, s 9

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, cls 485.223, 485.224(1), rr 1.03, 1.15I, 2.26B

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 February 2019 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 23 December 2018. 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 they did not provide evidence that they had applied for an assessment of their skills for the nominated skilled occupation by a relevant assessing authority.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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’.

8. ‘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.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Registered Nurse (NEC) – 254499, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Nursing & Midwifery Accreditation Council (‘ANMAC’).

10. On 11 May 2019, the applicant provided evidence that they had applied for a skills assessment by ANMAC for the relevant nominated occupation of Registered Nurse – 254499 on 22 December 2018. This is one day before the visa application date of 23 December 2018.

11. Whilst there were some administrative issues regarding the processing of the applicant’s skills assessment application, the evidence before the Tribunal indicated that the applicant did apply before the time of visa application, and further that the skills assessment has now been completed.

12. 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?

13. 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).

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

15. The applicant, on 25 February 2019, and again on 11 May 2019, provided a positive skills assessment by ANMAC for the nominated occupation of Registered Nurse (NEC) – 254499, completed on 14 February 2019, valid for two years from the date of determination.

16. Therefore the requirements of cl.485.224 are met.

    How and where was the qualification obtained?

17. 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).

18. 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. The skills assessment was completed with the applicant providing evidence that they had completed a Bachelor and Master’s Degree from Queensland University of Technology, with both being recognised registered courses. As the qualification was obtained as a result of studying a registered course, 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 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

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.485.223 of Schedule 2 to the Regulations; and

    ·cl.485.224 of Schedule 2 to the Regulations.

    Bridget Cullen
    Member