Okiror (Migration)

[2018] AATA 2254

Okiror (Migration) [2018] AATA 2254 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dennis Okiror

CASE NUMBER:  1730031

DIBP REFERENCE(S):  BCC2017/3247967

MEMBER:Stavros Georgiadis

DATE:16 May 2018

PLACE OF DECISION:  Adelaide

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 16 May 2018 at 1:19pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – ICT Business Analyst – Requirement for application to be accompanied by a relevant skills assessment – Application not accompanied by relevant skills assessment – Relevant skills assessment provided later on the same day – Meaning of “accompanied by” - Degree of flexibility to be applied – Decision remitted with direction

LEGISLATION
Education Services for Overseas Students Act (Cth), s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223, 485.224

CASES
Anand v MIAC [2013] FCA 1050
Berenguel and Anand v MIAC [2013] FCA 1050
Nguyen v MIBP [2016] FCCA 1523

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 14 November 2017 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 7 September 2017. 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 as the applicant declared on his application form that he had not applied for a skills assessment for the nominated skilled occupation (ICT Business Analyst ANZSCO 261111) nor had he provided a receipt at the time of application, as evidence of having applied for such an assessment from a relevant assessing authority.

4. The applicant appeared before the Tribunal on 16 May 2018 to give evidence and present arguments.  He was accompanied by his spouse.

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 14/048 set out in the Legal Services Register of Instruments - Skilled Visas.

9. On the evidence before the Tribunal, the applicant nominated the occupation of (ICT Business Analyst ANZSCO 261111) which is a specified skilled occupation as set out in Legislative Instrument IMMI 14/048. For that occupation, the relevant assessing authority specified is Australian Computer Society (ACS).

10. The applicant’s oral evidence is that at the time he lodged his on line application he had been advised by the assessing authority (the day before) that his skills assessment for the specified occupation would be accepted.  It is on this basis that the applicant lodged his application on 7 September 2017 answering “no” (correctly) in response to being in possession of an approved skills assessment at time of lodgement. The applicant’s oral evidence, which the Tribunal accepts, is that it was not until later that same day that he received the documented approval from ACS of a satisfactory skills assessment for the nominated occupation. This is corroborated by the ACS skills assessment dated 7 September 2017 before the Tribunal.  

11. The Tribunal finds that when the visa application was made the applicant did not provide evidence that he had applied for a skills assessment for the specified occupation by the relevant assessing authority as he had not included his receipt or his application for the skills assessment lodged earlier in August 2017.

12. However, the Tribunal has had regard to the particular circumstances of this case and relevant case authorities to better assess the matter.  For this Subclass 485 visa application, it is a criterion that when the 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.[1] This criterion was considered by the Federal Circuit Court in Nguyen v MIBP.[2] The Court applied Berenguel and Anand v MIAC[3] to find that a measure of flexibility applies to the words ‘accompanied by’ such that the evidence is not required to be provided with the application itself.[4] The Court did not identify the possible outer limits of when an application may be considered to be ‘accompanied by’ the relevant evidence but it is clear in the present case that the applicant had received a satisfactory assessment on the same day as lodging his visa application.

    [1] cl.485.223 substituted by SLI 2013, No.33.

    [2] [2016] FCCA 1523 (Judge Burchardt, 8 July 2016).

    [3] [2013] FCA 1050 (Katzmann J, 16 October 2013).

    [4] In this case, the applicant provided a copy of her skills assessment to the delegate 29 days after her visa application. Judge Burchardt held that it was plainly open for the Tribunal to conclude that the delay meant the evidence did not accompany the application. At [39]-[40], his Honour rejected the Minister’s submission that the words ‘when the application was made, it was accompanied by’ should be taken at its most literal sense, given it would be unworkable as it was not possible to send accompanying documentation with the online application. His Honour held that Anand was applicable notwithstanding the difference in terminology used.

13. Adopting the approach by the Federal Circuit Court in the decisions of Nguyen v MIBP.[5] and Berenguel and Anand v MIAC[6] the Tribunal has proceeded with some flexibility in applying the words ‘accompanied by’.  The Tribunal accepts that at the time of visa application the applicant had already applied for the skills assessment (on 11 August 2017) as evidenced by a receipt from ACS that is now before the Tribunal and indeed, had received a satisfactory skills assessment at the same time (day) as lodging his visa application on 7 September 2017.

    [5] [2016] FCCA 1523 (Judge Burchardt, 8 July 2016).

    [6] [2013] FCA 1050 (Katzmann J, 16 October 2013).

14. Accordingly, the Tribunal is satisfied that 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, and therefore, the applicant satisfies the requirements of cl.485.223 of Schedule 2 to the Regulations.

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

15. 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.

16. As aforementioned, the Tribunal accepts from the ACS skills assessment document of 7 September 2017 Reference No: A-193258, that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation; and also that the specified validity period of 24 months (to 7 September 2019) has not ended.

17. Therefore, the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

18. 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).

19. The skills assessment sets out that the applicant completed a Master of Information Technology from the University of South Australia in July 2017 which is assessed as comparable to an AQF Master Degree with a Major in computing. During this time the applicant held a Class TU 573 visa valid until 30 September 2017. 

20. 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 valid student visa. The Tribunal accepts that the qualification was obtained as a result of studying a registered course in Australia.

21. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

22. It follows that the applicant meets the requirements of cl.485.224 of Schedule 2 to the Regulations.

23. 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

24. 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.

    Stavros Georgiadis
    Member