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

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).
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.
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.
The Tribunal received a review application from the applicant on 22 January 2017,…

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 Toocaram (Migration)

Details

AGLC: Toocaram (Migration) [2017] AATA 747
Case: [2017] AATA 747
Decision Date: 16 May 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, subclass 485, Graduate Work stream. The central dispute concerned whether the applicant had satisfied the visa criteria relating to their nominated skilled occupation, specifically whether they had applied for a skills assessment for their nominated occupation by the relevant assessing authority at the time of application.

The primary legal issues before the Tribunal were to determine the applicant's nominated occupation as stated in their visa application and to assess whether the skills assessment provided by the applicant was for that nominated occupation, or if an error had occurred in the nomination process. The Tribunal was required to interpret clauses 485.223 and 485.224 of Schedule 2 to the Regulations, which stipulate the requirements for a skills assessment in relation to a nominated skilled occupation.

The Tribunal found that while the applicant had nominated "Automotive Electrician" in their visa application, they had subsequently provided a skills assessment from the Trades Recognition Australia (TRA) for the occupation of "Motor Mechanic (General)". The applicant provided evidence, both oral and written, that they had mistakenly selected "Automotive Electrician" from a drop-down list during the online application process, when their intention was always to nominate "Motor Mechanic" as their skilled occupation. This intention was supported by their Australian studies in automotive mechanical technology and diagnosis. The Tribunal accepted the applicant's explanation that the nomination of "Automotive Electrician" was an error and that their skills assessment for "Motor Mechanic" was consistent with their overall intention and qualifications.

Consequently, the Tribunal concluded 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 a direction that the applicant had 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 matter should be remitted for reconsideration.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.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 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. 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.

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.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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