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 languages.
The applicant was represented in relation to the review by his registered migration agent.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 13 November 2019 and that he understood the content of the decision. In this regard, the applicant stated that his agent submitted his application, who sent him the result.
The applicant was asked if he provided a copy of the delegate’s decision to the Tribunal and he stated that his agent had provided a copy to the Tribunal with his application.
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)
On the evidence before the Tribunal, the applicant nominated the occupation of “Chef”, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trade Recognition Australia.
As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation of Chef, by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223. However, had the correct occupation nomination been inserted into the application, namely Motor Mechanic (General), as intended by the applicant and that correlates with the selection of courses undertaken in the automotive field, together with the successful TRA for the occupation Motor Mechanic (General), then the applicant would have satisfied cl.485.223. As such, the Tribunal is satisfied that the applicant has applied for a relevant skills assessment for the ‘intended occupation’.
The Tribunal is guided by the findings in Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502 (16 May 2014) par.46-47, wherein Mortimer J. stated:
[46]“Sections 104 and 105 are not freestanding provisions permitting changes to visa applications where there are changes of circumstances or incorrect answers given. In context, they are intended to operate as potential triggers for the cancellation power in s 109, and possibly as exculpations from the exercise of that power.
[47]In my opinion, those provisions cannot have the kind of operation which the appellants seek to give them in this case, which is as some freestanding opportunity for a visa applicant to alter information on a visa after an application is lodged, where the alteration and new information will improve the likelihood of the visa being granted, because the visa applicant has subsequently realised a problem existed with the application as lodged.”
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.
The Tribunal, having considered the compelling circumstances of this case, finds that “it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify”.
The Tribunal accepts that the applicant completed courses in the automotive discipline and that a skills assessment was successfully acquired from TRA on 2 October 2019 for the occupation of Motor Mechanic (General) – ANZSCO Code: 321211 and that this occupation was the intended occupation to be specified.
Has the applicant been assessed as suitable for the nominated occupation?
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.
The evidence, presented to the Tribunal, prior to and in the hearing, confirms that the applicant has completed automotive courses, as a student in Australia and that the skills assessment by TRA, the responsible authority, was completed during the last 3 years.
Therefore, the requirements of cl.485.224 are met.
How and where was the qualification obtained?
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)).
On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of qualifications obtained in Australia while the applicant held a student visa.
Conclusion on Suitable Skills Assessment
It follows that the applicant meets the requirements of cl.485.224.
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 AM
Member