Shah (Migration)

[2018] AATA 5133

Shah (Migration) [2018] AATA 5133 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravi Ajitkumar Shah

CASE NUMBER:  1819586

DIBP REFERENCE(S):  BCC2018/1324353

MEMBER:Alison Mercer

DATE:18 December 2018

PLACE OF DECISION:  Melbourne

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 18 December 2018 at 1:36pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – skills assessment – Engineering Technologist – hearing not required – receipt for skills assessment provided with application – delay in processing assessment – evidence provided – qualification obtained in Australia as student – studied registered course – 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, 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 22 June 2018 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 20 March 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.485.224 of Schedule 2 to the Regulations, which required that the applicant had provided a positive skills assessment for his nominated skilled occupation. The delegate found that although the applicant had provided a receipt from Engineers Australia (EA), the relevant assessing authority for his nominated occupation of Engineering Technologist, he did not provide the actual skills assessment despite being requested to provide it.

4. The Tribunal received a review application from the applicant on 5 July 2018. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Fizah Ismail, as his representative and authorised recipient for correspondence.

5. On 23 July 2018, the applicant’s agent wrote to the Tribunal to advise that at the time that the applicant lodged his subclass 485 visa application, he had applied to EA for a skills assessment already. He further advised that during the processing of that application by EA, EA advised the applicant that his course of study did not meet the criteria for the approval of a skills assessment under the accredited stream. Therefore, EA advised him to submit a Competency Demonstration Report (CDR) application, and the applicant did so on 22 June 2018 and this was still being considered by EA. The agent further advised that the current processing timeframe for CDR applications was 13 weeks before it would be assigned to a case officer, but that EA had advised it would soon be allocated. The agent therefore requested an extension of time for this to be finalised.

6. On 22 August 2018, the Tribunal wrote to the applicant to request him to provide the skills assessment by 6 September 2018.

7. On 6 September 2018, the applicant’s new agent, Ms Shika Dhawan, advised the Tribunal that the applicant had been requested to provide additional information to EA, and was in the process of doing so by 21 September 2018, after which it was anticipated that the skills assessment would be finalised.

8. On 21 September 2018, the applicant’s agent forwarded an email from EA to her advising that further information was required by the applicant, due by 21 October 2018.

9. On 4 December 2018, the Tribunal wrote to the applicant, via his agent, to invite him to a hearing on 20 December 2018, and to request that he provide any written submissions and/or documents in support of his case 1 week prior to the hearing.

10. On 10 December 2018, the applicant’s agent advised that the applicant and she would attend the hearing. On 12 December 2018, the applicant’s agent requested additional time to provide documents in support of the case. On 13 December 2018, the Tribunal advised the applicant and his agent that they had until 17 December 2018 to do so.

11. On 17 December 2018, the applicant’s agent provided a range of documents to the Tribunal including:

    ·skills assessment issued to the applicant by Engineers Australia on 22 October 2018 stating that his skills have been assessed as suitable for the occupation of Engineering Technologist (ANZSCO 223914); and

    ·email dated 25 October 2018 from the applicant’s agent to the Tribunal attaching a copy of skills assessment.

12. On 18 December 2018, the Tribunal wrote to EA to confirm the validity of the skills assessment provided by the applicant. On the same date, EA confirmed that the skills assessment was genuine and valid.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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?

16. 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’.

17. ‘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.

18. On the evidence before the Tribunal, the applicant nominated the occupation of Engineering Technologist (ANZSCO code 223914) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is EA.

19. From its review of the Departmental file, the Tribunal is satisfied that the applicant provided a receipt with his subclass 485 visa application made on 20 March 2018, indicating that he had applied to EA for a skills assessment on the same date.

20. It is not disputed that the applicant did not provide a skills assessment to the Department, despite the delegate’s request for him to do so.  His evidence was that his skills assessment application was still being processed by EA for some time, requiring him to submit additional information at different points in time, before EA issued him with a positive skills assessment for his occupation of Engineering Technologist on 22 October 2018.

21. EA has independently confirmed to the Tribunal on 18 December 2018 that this skills assessment is valid and was genuinely issued to the applicant on 22 October 2018.

22. The Tribunal notes that the applicant’s current agent provided evidence on 17 December 2018 of forwarding the skills assessment by email to the Tribunal’s Perth registry email address on 25 October 2018. However, the Tribunal has no record of receiving this document on 25 October 2018. Nevertheless, the Tribunal has now verified that the EA skills assessment issued to the applicant on 22 October 2018 is genuine and valid.

23. Accordingly, 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 Tribunal finds that the applicant satisfies the requirements of cl.485.223.

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

24. 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).

25. The Tribunal is satisfied that the applicant’s skills assessment issued by EA on 22 October 2018 meets cl.485.224(1) and that there is no validity period expressed in the skills assessment so cl.485.224(1A) is not relevant in this case.

26. The Tribunal therefore finds that the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

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

28. The Tribunal has reviewed the Department’s file and its electronic records and is satisfied that:

    ·the applicant completed a Diploma of Engineering at Curtin University in Western Australia between February 2013 and December 2013;

    ·he completed an Advanced Diploma of Engineering (Mechanical) at Polytechnic West in Western Australia between February 2014 and December 2014;

    ·he completed a Bachelor of Technology (Engineering) (major in Mechanical) at Edith Cowan University in Western Australia between February 2015 and December 2017; and

    ·the applicant held subclass 572 and 573 student visas throughout this period.

29. 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).

30. Therefore, 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. Having reviewed the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, the Tribunal is satisfied that the qualifications were obtained as a result of studying registered courses, and therefore it finds that the applicant satisfies the requirements of cl.485.224(2).

31. Accordingly, it follows that the applicant meets the requirements of cl.485.224.

32. 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

33. 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.

    Alison Mercer
    Member