Singh (Migration) - [2020] AATA 3181

Singh (Migration) [2020] AATA 3181 (5 June 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sahazdeep Singh
CASE NUMBER:  1934150
DIBP REFERENCE(S):  BCC2019/4146167
MEMBER:Warren Stooke AM
DATE OF DECISION:  5 June 2020
DATE CORRIGENDUM
SIGNED:11 June 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

·Paragraph 8 should be amended to “For the following reasons, the Tribunal has concluded that the decision under review should be remitted”

Warren Stooke AM
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sahazdeep Singh
CASE NUMBER:  1934150
DIBP REFERENCE(S):  BCC2019/4146167
MEMBER:Warren Stooke AM
DATE:5 June 2020
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 05 June 2020 at 5:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Motor Mechanic (General) – mistake was clearly unintended – compelling circumstances – successful TRA skills assessment result provided –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 485.223, 485.224
CASES
Akbar v Minister for Immigration and Border Protection [2019] FCA 515
Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 November 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 August 2019. 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because the applicant provided a successful skills assessment for the occupation of Motor Mechanic (General) – ANZSCO Code 321211, that was assessed by Trade Recognition Australia (TRA), whereas the applicant’s nominated occupation in his application was that of Chef – ANZSCO Code: 351311. As such, the delegate found that the applicant had not meet the requirements of cl.485.224.
The applicant appeared before the Tribunal on 27 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2020] AATA 3181
Case: [2020] AATA 3181
Decision Date: 5 June 2020

CaseChat Overview and Summary

The applicant, a 22-year-old from India, sought review of a decision concerning his application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, in the Graduate Work stream. The core dispute revolved around whether the applicant met the primary criteria for the visa, specifically those relating to his nominated skilled occupation. The applicant had completed several vocational courses in automotive mechanical technology and had obtained a successful skills assessment from Trades Recognition Australia (TRA) for the occupation of Motor Mechanic (General). He also provided evidence of part-time work as a mechanic and current study towards a Bachelor of Business (Management).

The legal issue before the Tribunal was whether the applicant could satisfy the requirements of clauses 485.223 and 485.224 of Schedule 2 to the Regulations, which concern the applicant's skills in relation to their nominated skilled occupation. Specifically, the Tribunal had to determine if the applicant had met the requirement of having applied for an assessment of his skills for the nominated occupation by a relevant assessing authority at the time of his visa application. The applicant contended that he had made an unintentional error in his online application, mistakenly selecting "chef" as his nominated occupation when it should have been "Motor Mechanic (General)," for which he held a valid TRA assessment.

The Tribunal considered the applicant's submissions and the evidence, including his qualifications and the TRA assessment for Motor Mechanic (General). It acknowledged the principle that an applicant generally cannot change their nominated occupation. However, the Tribunal also noted that there was no definitive answer regarding the correction of a clearly unintended mistake in the nominated occupation, particularly when considering the underlying courses of study and the submitted skills assessment against the intended occupation. Guided by the reasoning in *Akbar v Minister for Immigration and Border Protection* [2019] FCA 515, the Tribunal found that the applicant's error in occupation selection was a mistake capable of correction.

Consequently, the Tribunal found that the applicant met the requirements of clauses 485.223 and 485.224 of Schedule 2 to the Regulations. The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant satisfied these specific criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. The applicant is a 22 year old from India, who provided to the Tribunal evidence that he had completed the following courses of study:a.Certificate IV in Frontline Management – 12 July 2016;b.Certificate III in Light Vehicle Mechanical Technology from 11 February 2017 to 25 February 2018;c.Certificate IV in Automotive Mechanical Diagnosis from 14 March 2018 to 18 July 2018;d.Diploma of Automotive Technology from 14 August 2018 to 9 April 2019. The applicant advised the Tribunal that he was successfully assessed by TRA for the occupation of Motor Mechanic (General) – 321211, which was confirmed in correspondence of 2 October 2019. [Reference TRA 19/999335303] The applicant provided evidence to the Tribunal that he is currently studying a Bachelor of Business (Management) and currently works part-time, as a mechanic, with the objective of obtaining permanent residency. The applicant stated that he works with BMW Dandenong, where he has been working since August 2018 and that he sometimes works 20 hours on his student visa. The applicant submitted that his only error was his occupation selection. The applicant’s representative corresponded with the Tribunal on 16 May 2020 and explained that the applicant had a valid assessment as a Motor Mechanic (General) from TRA and that the error in his application, submitted online, was an incorrect selection of an occupation of “chef”, whereas the correct nominated occupation that needed to be selected was “Motor Mechanic (General)”.Had the applicant applied for a relevant skills assessment? 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’. ‘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 Legislated Instrument - Skilled visas (IMMI 16/059 Schedule 1, which commenced on 1 July 2016)

Decision

Reasons for decision

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 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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

Further, the Tribunal is guided by the decision of Collier J. in Akbar v Minister for Immigration and Border Protection [2019] FCA 515 (16 April 2019) at par. [48] and [49]:“[48] Before the Tribunal the visa applicant relied on ss 99, 100 and 105 of the Migration Act and argued, inter alia, that he was able to change his nominated application because the information initially provided was “incorrect”. The Tribunal rejected this argument because the nominated occupation of “finance manager” was clearly made on the visa application form, and the evidence in the case did not support the contention that he had made a “mistake”. As Mortimer J observed:[22] ... The only “mistake” the Tribunal found was that the first appellant, having correctly recorded in his visa application the occupation he intended to specify as his nominated occupation, subsequently discovered he had been ill-advised and he lacked the qualifications necessary to secure an assessment of suitability for that occupation.[23] While in colloquial terms that is a mistake, it was not, as the Tribunal found, a mistake in the sense of the first appellant specifying on the visa application an occupation he did not intend to specify. Rather, as the Tribunal found, on subsequently discovering (more than 18 months later) that he was not qualified to be assessed as suitable for that occupation, the first appellant changed his mind and nominated a different occupation. That was not, the Tribunal found, the kind of “error” capable of correction under s 105 of the Act.[49] Before Mortimer J the appellant contended that the Tribunal should have concluded that there was a mistake, which was corrected by the VETASSESS assessment for the occupation of “marketing research analyst”, and that Patel did not apply. Her Honour disagreed:[33] The language of the visa criteria in cl 485.214 are not susceptible to any broader reading than that given by the Tribunal, subject perhaps to the qualification it expressed in its reasons that it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify. However, this was not such a case: as the tribunal found, there was no lack of clarity, or lack of intention, around the first appellant’s choice to specify “finance manager” on his visa application at the time he made the application.” The Tribunal has considered carefully the issue of whether the applicant could change his nominated occupation to Motor Mechanic (General) for the purposes of this visa application. In this regard, the Tribunal accepts that an applicant cannot change his or her nominated occupation, however there is no definitive answer as to whether an applicant can correct a mistake in the nominated occupation, where such a mistake was clearly unintended, especially when considering the relevance of the underlying courses of study and the true skills assessment submitted by the applicant against the intended occupation of Motor Mechanic (General), as denoted in this case.