Toocaram (Migration)

[2017] AATA 747

Toocaram (Migration) [2017] AATA 747 (16 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vilakshay Toocaram

CASE NUMBER:  1701100

DIBP REFERENCE(S):  BCC2016/2647166

MEMBER:Alison Mercer

DATE:16 May 2017

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 16 May 2017 at 10:25am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Relevant skills assessment – Motor Mechanic (General) – Skills assessment not provided for nominated occupation – Applicant mistakenly nominated incorrect occupation

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 105
Migration Regulations 1994, r 1.03, r 1.15I, r 2.26B, Schedule 1, Schedule 2, cl 485.223, cl 485.224

CASES

Chen v Minister for Immigration and Citizenship [2011] FMCA 859
Hemlata v MIBP [2014] FCCA 968
KC v MIAC [2013] FCCA 296
Patel v MIAC [2011] FMCA 399
Patel v Minister for Immigration and Citizenship (2011) FCR 62
Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502
Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874

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 4 January 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 11 August 2016. 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. The delegate found that the applicant’s nominated occupation in his visa application was Automotive Electrician (ANZSCO code 321111), and that he was requested to provide a skills assessment for this occupation from the relevant assessing authority, Trades Recognition Australia (TRA) on 28 September 2016. The delegate further found that, in response, the TRA skills assessment dated 22 December 2016 provided by the applicant was for a different occupation, being Motor Mechanic (ANZSCO code 321211). As the skills assessment provided was not for the applicant’s nominated occupation, he did not meet cl.485.224(1) and thus did not meet cl.485.224 as a whole.

4. The Tribunal received a review application from the applicant on 22 January 2017, which was accompanied by a copy of the delegate’s decision and a statement in which he indicated that he made a mistake in choosing Automotive Electrician as his nominated occupation and that his correct nominated occupation was Motor Mechanic (General).  He also provided a copy of his English test results and of his provisional skills assessment from TRA dated 22 December 2016, which states that his skills have been assessed as suitable for the occupation of Motor Mechanic (General) (ANZSCO code 321211).

5. On 12 April 2017, the Tribunal wrote to the applicant to invite him to attend a hearing on 10 May 2017.

6. The applicant appeared before the Tribunal on 10 May 2017 to give evidence and present arguments. He reiterated that he accidentally selected his nominated occupation as Automotive Electrician from the drop-down menu when making his visa application online, but he had meant to pick Motor Mechanic (General). In response to the Tribunal’s query, the applicant confirmed that he applied to TRA on 24 July 2016 to be assessed as a Motor Mechanic, not an Automotive Electrician, and this was because he knew that this was the occupation his qualifications were appropriate for.  This occupation (Motor Mechanic) was what his overseas classmates in the same course also nominated, and it was simply an error on his part when using the drop-down menu to not select Motor Mechanic, and one he did not realise he had made until he got the Department refusal.  The applicant confirmed that he is currently employed with Brighton Mazda as a Motor Mechanic.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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’.

10. ‘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 16/059. This instrument contains both the occupations Automotive Technician (ANZSCO code 321111) and Motor Mechanic (General) (ANZSCO code 321211). The assessing body for both occupations is TRA.

11. The first issue to be resolved in this case is what application was nominated by the applicant. It is not disputed by him that in the visa application, he put Automotive Electrician (ANZSCO code 321111) as his nominated occupation, but he subsequently provided a skills assessment from TRA for the occupation of Motor Mechanic (General) (ANZSCO code 321211).  He gave oral and written evidence that he accidentally selected Automotive Electrician as his nominated occupation from the drop-down list during the online application process but had meant to select Motor Mechanic as it was always his intention to make his application on the basis that Motor Mechanic was his skilled occupation. He maintained that his application to TRA for a skills assessment was for the occupation of Motor Mechanic from the beginning, and that this was consistent with his Australian studies, which consisted of a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology, all undertaken at Kangan Institute of TAFE in Melbourne.  The applicant denied that he originally did intend to apply as an Automotive Electrician and only sought to change his nominated occupation to Motor Mechanic after he had lodged the visa application and realised that he would not be able to get a positive skills assessment from TRA as an Automotive Electrician.

12. 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, or whether he could be regarded as having nominated that occupation, and not the occupation of Automotive Electrician. 

13. With limited exceptions,[1] it is a Schedule 1 requirement for making a valid skilled visa application that an applicant has nominated a skilled occupation in the visa application form.[2]

    [1] For example where the applicant already holds a relevant temporary skilled visa: see e.g. item 1230(5).

    [2] Items 1135(3)(c); 1136(4)(b)(ii), (5)(b)(ii), (6)(b)(iii); 1137(4) table item 4; 1138(4) table item 4; 1230(4) table item 4 First Provisional visa stream; 1228(3)(b)(ii); and for visa applications made before 23 March 2013 items 1229(4)(b)(ii), (5)(b)(ii), (6)(b)(iii), (7)(b)(ii), or for visa applications made on or after 23 March 2013 items 1229(3)(k), (5)(b)(ii), (6)(b)(iii) and (7)(b)(ii) (as substituted by SLI 2013, No.33.

14. Whether an applicant has nominated a skilled occupation, and what occupation has been nominated, are findings of fact for the Tribunal. In making a determination as to what occupation has been nominated, it is necessary to have sufficient evidence (either the description of the occupation or the ASCO/ANZSCO code) to identify a ‘skilled occupation’ as listed in the relevant instrument. For instance, where the description and code don’t match each other, a finding must be made as to what occupation was actually nominated.

15. Under the GSM scheme (post 1 September 2007), an applicant is not permitted to change his/her nominated skilled occupation during the processing of the visa application.[3]

    [3] Patel v MIAC (2011) 198 FCR 62 at [53] – [61], Chen v MIAC [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011) at [54], [57], KC v MIAC [2013] FCCA 296 (Cameron J, 17 May 2013) at [15], and Pavuluri v MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [9] and [35] agreeing with what Robertson J said in Patel.

16. While it is clear that an applicant cannot change his or her nominated occupation, there is no clear answer as to whether an applicant can correct a mistake in the nominated occupation. There are several cases in which applicants have alleged they had mistakenly nominated the wrong occupation;[4] however, in each of these cases, the Tribunal (differently constituted) rejected at a factual level the assertion that the nominated occupation was incorrect.

    [4] See, e.g. Patel v MIAC [2011] FMCA 399 (Nicholls FM, 1 June 2011) upheld on appeal in Patel v MIAC (2011) 198 FCR 62); Chen v MIAC [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011); Shafiuzzaman v MIAC [2011] FMCA 874 (Nicholls FM, 15 November 2011); KC v MIAC [2013] FCCA 296 (Cameron J, 17 May 2013); and Pavuluri v MIBP [2014] FCA 502 (Mortimer J, 16 May 2014). The Tribunal In Hemlata v MIBP [2014] FCCA 968 (Judge Turner, 29 May 2014) it is not apparent whether the Tribunal rejected the contention at a factual level; in any case it took the view that it was not possible for the applicant to correct or alter his nominated skilled occupation, or to change his nominated occupation during the processing of the application, and this was held to accord with Patel and Chen.

17. Obiter comments in Chen v Minister for Immigration and Citizenship [2011] FMCA 859 suggest that where an applicant makes a mistake of this kind, the only option is to make another application.[5] On the other hand, the decisions in Patel v, Minister for Immigration and Citizenship (2011) FCR 62, [6] Shafiuzzaman v Minister for Immigration and Citizenship[7][2011] FMCA 874, and Pavuluri v Minister for Immigration and Border Protection [8][2014] FCA 502 (Pavuluri) leave open the possibility that it may be possible to correct an incorrect answer of this kind, for example under s.105 of the Migration Act 1958.[9]

    [5] [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011) at [58].

    [6] [2011] FMCA 399 (Nicholls FM, 1 June 2011), upheld on appeal: Patel v MIAC (2011) 198 FCR 62.

    [7] [2011] FMCA 874 (Nicholls FM, 15 November 2011).

    [8] [2014] FCA 502 (Mortimer J, 16 May 2014).

    [9] For detailed consideration of the applicability of ss.104-105 of the Act in this context, see Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [41]-[49].

18. For example, in Pavuluri the Tribunal expressed the view that, in principle, there may be circumstances in which it could find the nominated occupation on the visa application form to be something other than what was stated, if there was evidence to support a different characterisation of the nominated occupation at the time of the visa application, but found that this was not such a case.[10] While the Court did not reach a concluded view, it appears to have tentatively accepted the Tribunal’s opinion; that is, that it may be able to examine other evidence or material to clarify or explain precisely which occupation an applicant intended to specify.[11]

    [10]Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [21]. In that case the appellant had explained that he had been ill-advised as to the appropriate occupation to nominate for his degree and, relying on s.105, asked the Tribunal to allow him to correct his occupation (from ‘finance manager’ to ‘market research analyst’) as he had made a mistake. The Tribunal found that the evidence did not support a finding that he had intended to nominate an occupation other than ‘finance manager’ and had made a ‘mistake’. It found that his only ‘mistake’ was that, having recorded in his application the occupation he intended to specify, he subsequently discovered he had been ill-advised. The Court observed that while in colloquial terms that was a mistake, it was not a mistake in the sense of specifying on the visa application an occupation the appellant did not intend to specify, or a mistake of the kind capable of correction under s.105.

    [11] Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [33].

19. Thus, while not free from doubt, it may be possible to find, as a matter of fact, that the occupation specified in the application form is not (and was not) the nominated occupation. However, having regard to the concept of nominating an occupation as a requirement of a valid visa application, and the terms of the application form (‘What is your nominated occupation?’), the circumstances in which this may be open would appear to be narrowly confined. In considering this question, an applicant’s explanation for the mistake would be relevant. Other relevant factors may include the match (or mismatch) between the occupations in question and the applicant’s qualifications and experience, the skills assessment sought, and the relevant assessing authority specified on the application form.[12] It may not necessarily be enough that the applicant ‘made a mistake’ as a result of incorrect advice or lack of legal advice when completing the form.[13] However, a finding that the mistake was in the nature of a clerical error might support a conclusion that the nominated occupation was other than as specified in the application form.[14]

    [12] In obiter comments the Court in KC v MIAC [2013] FCCA 296 (Cameron J, 17 May 2013) noted that a finding a mistake had been made was open to the Tribunal given an application for a skills assessment in respect of the ‘correct’ occupation had been made shortly prior to the lodgement of the visa application (at [17]).

    [13] See e.g. Chen v MIAC [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011) and Pavuluri v MIBP [2014] FCA 502 (Mortimer J, 16 May 2014).

    [14] Compare the example provided in Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [49], of a wrong skills assessment receipt number or reference number entered because of a typographical error.

20. The Tribunal has considered the explanation given by the applicant, and the available evidence.  His account of selecting Automotive Technician by mistake instead of Motor Mechanic (General) while making his online application and using the drop down menu that is part of that process is plausible, as the 2 occupations have virtually identical ANZSCO codes (321111 and 321211 respectively), and he was issued with a positive skills assessment as a Motor Mechanic (General) by TRA.  However, other evidence is more ambiguous: for instance, the applicant’s qualifications appear to the Tribunal to be relevant to both occupations, suggesting it is plausible he could have selected either. Similarly, the reference letter dated 9 November 2016 from Brighton Mazda provided to the Department by the applicant states that he was originally employed in June 2016 as a trainee automotive motor technician and that his work duties now involved servicing of motor vehicles, diagnostics and repairs replacing brakes, clutches, water and fuel pumps using diagnostic computer equipment, brake machine lathe, hydraulic press wheel alignment machine and general tools such as spanners and screwdrivers. Although the description of him as an automotive technician in this reference arguably aligns more closely with the occupation of Automotive Electrician, the list of duties and tasks carried out by the applicant at Brighton Mazda appear more consistent with the occupation of Motor Mechanic (General).

21. Accordingly, while this is not a clear-cut case of an applicant having selected a completely unrelated occupation to his qualifications, the Tribunal considers it is nevertheless more likely than not that the applicant did mean to nominated his skilled occupation as Motor Mechanic (General), and that his failure to do so and to instead select Automotive Electrician was in fact a clerical error on his part.

22. Accordingly, the Tribunal is satisfied, and makes a finding of fact, that the applicant’s nominated occupation, as a finding of fact, was Motor Mechanic (General). 

23. On the evidence before the Tribunal, it has found that the applicant nominated the occupation of Motor Mechanic (General) (ANZSCO code 321211) which is a specified skilled occupation, the relevant assessing authority for which is TRA.

24. Based on the material on the Department’s file, the Tribunal finds that the applicant had applied for a skills assessment to TRA on 21 July 2016 (as stated in his visa application), and thus he satisfies the requirements of cl.485.223.

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

25. 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).

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

27. The Tribunal is satisfied that the applicant was issued with a positive skills assessment as a Motor Mechanic (General) by TRA on 22 December 2016, which was stated to be used for the purposes of his subclass 485 visa application.  There is no limitation expressed within the skills assessment as to its period of validity.

28. Accordingly, the Tribunal is satisfied that the applicant has been assessed in the last 3 years by TRA as having skills suitable for his nominated occupation and there is no validity period for this assessment.

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

    How and where was the qualification obtained?

30. 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).

31. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of qualifications obtained at Kangan Institute of TAFE in Australia while the applicant held a student visa. The Tribunal has reviewed information available on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website and is satisfied that these courses were registered for these purposes, and that Kangan Institute of TAFE is a registered course provider for these purposes. As the qualifications were obtained as a result of studying registered courses, the applicant satisfies the requirements of cl.485.224(2).

    Conclusion

1. It follows that the applicant meets the requirements of cl.485.224.

2. 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

3. 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