Wongso (Migration)

[2018] AATA 4714

Wongso (Migration) [2018] AATA 4714 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paulus Christopher Wongso

CASE NUMBER:  1821787

DIBP REFERENCE(S):  BCC2018/1107586

MEMBER:Amanda Mendes Da Costa

DATE:8 October 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(1) of Schedule 2 to the Regulations.

Statement made on 08 October 2018 at 10:44am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –  graduate work stream – skills assessment – suitability for nominated occupation – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.223, 485.224

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 16 July 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 8 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(1) of Schedule 2 to the Regulations because at the date of decision the applicant had not provided the Department with a skills assessment of his nominated occupation of Engineering Technologist ANZSCO Code 233914, from a relevant assessing authority, as suitable for that occupation.

4. The Tribunal has perused both the files of the Department and the Tribunal.  On consideration of the evidence before it, the Tribunal determined that a hearing was not required and that a decision on the review could be made on the basis of the documentation received.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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’.

9. ‘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 18/007.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Engineering Technologist which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia.

11. The Tribunal notes that on the visa application form, the applicant provided a Reference/Receipt number 81760267411 dated 7 March 2018 for a skills assessment by Engineers Australia, a relevant assessing authority.

12. 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 applicant satisfies the requirements of cl.485.223.

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

13. 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).

14. The applicant provided the Tribunal with written verification from Engineers Australia dated 11 September 2018, advising that the applicant’s skills for the nominated skilled occupation of Engineering Technologist, ANZSCO Code 233914 had been assessed as suitable for that occupation.  On 24 September 2018 the Tribunal received an email from Engineers Australia, confirming that the verification document sent to the Tribunal by the applicant was a genuine one.  The Tribunal notes that the skills assessment was not expressed to be valid for a particular period. 

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

16. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.223 and 485.224(1) 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:

17. 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(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member