Tribunal Saves Applicant From Error

 
 

In Shamu 1214967 [2013] MRTA 2455 (27 September 2013), the applicant’s agent had mistakenly nominated an ‘Industrial Designer’ (ANZSCO Code 232312) as her skilled occupation in her visa application for a subclass 485 visa. She said that as a matter of fact she had nominated that as a matter of fact her application had actually nominated a ‘Graphic Designer’ (ANZSCO Code 232411).

The MRT used s 54 of the Migration Act as the basis to decide in her favour. S 54 relevantly provides:

(1)       The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)       For the purposes of subsection (1), information is in an application if the information is:

(a)       set out in the application; or

(b)       in a document attached to the application when it is made; or

(c)        given under section 55.

What this means is that the application form will only be one source of where to find the source of the determination of what the nominated occupation is.  Here is how the MRT found in the applicant’s favour in paragraphs 38 to 43:

The Tribunal further notes that the Courts have held that under the General Skilled Migration visa scheme (post 1 September 2007), it is not possible for an applicant to change his/her nominated skilled occupation during the processing of the visa application, although it is a question of fact for the Tribunal as to which occupation the applicant actually nominated for the purposes of her subclass 485 visa application.

In considering this issue the Tribunal notes that ANZSCO states the role of an ‘Industrial Designer’ to be the planning, designing, development and documentation of “industrial, commercial or consumer products for manufacture with a particular emphasis on ergonomic (human) factors, marketing considerations and manufacturability, as well as the preparation of designs and specifications for mass or batch production”.[7]

On the other hand, ANZSCO describes the role of a ‘Graphic Designer’ to involve the planning, design, development and preparation of  “information for publication and reproduction using text, symbols, pictures, colours and layout to achieve commercial and communication needs with particular emphasis on tailoring the message for the intended audience”.[8] 

In this case the applicant has completed a ‘Bachelor of Arts (Art)’ at Curtin University. The subjects listed in the associated academic transcript, which was presented with the visa application, focus on visual and graphic arts, rather than industrial design.  The Tribunal also gives some weight to the advice from Curtin University dated 7 February 2012 that the applicant had received credit for a unit she had completed under the ‘Bachelor of Arts (Graphic Design)’ qualification for the purposes of her ‘Bachelor of Arts (Art)’ because this lends support to the applicant’s claim that she saw her qualification as being in the graphic design field.

Similarly, the evidence relating to the certificate IV qualifications in interior design the applicant completed, and which were submitted with the visa application, have a strong emphasis on the graphic arts, in terms of units on drawing techniques, digital images, colour therapy, and drawing and the like.

As a result, on balance, having regard to the whole of the evidence before it, the Tribunal finds that the applicant nominated the occupation of ‘Graphic Designer’ (ANZSCO Code 232411) in her visa application.

In a similar vein is Qureshi 1213324 [2013] MRTA 1448 (2 July 2013) where the MRT found In paragraphs 19 – 21) :

The Tribunal notes that according to Patel and Chen[9], an applicant is not permitted to change his/her nominated skilled occupation during the processing of the visa application. However, the decisions in Patel v MIAC[10] and Shafiuzzaman v MIAC[11], leave open the possibility that it may be possible to correct an incorrect answer or a mistake in answering the nominated skilled occupation question on the visa application form, for example under s.105. In this case, the applicant has essentially requested the Tribunal to allow him to change his occupation from Chef (as specified on the visa application) to Cook relying on s.105. The Tribunal has allowed this request. It finds that the occupation specified on the visa application form is not and was not his nominated skilled occupation and finds that his nominated skilled occupation is and was Cook (ANZSCO Code 351411). This is on the basis that the qualification the applicant is using to satisfy his Australian study requirement being a Certificate IV in Commercial Cookery and the knowledge and skills he has learnt from this course matches the Cook occupation. The Tribunal accepts that the applicant made a genuine error in not specifying this as his nominated skilled occupation on the visa application form.   

The applicant nominated occupation of Cook (ANZSCO Code 351411), is a skilled occupation specified in IMMI 11/035. For that occupation, the relevant assessing authority specified in that instrument is TRA. 

The Tribunal has before it a letter from TRA stating that the applicant’s Provisional Skills Assessment application submitted to the TRA has been assessed as successful for the occupation of Cook and that this letter can be used to apply to the Department for a Skilled – Graduate (Temporary) visa (Subclass 485). On the basis of this evidence the Tribunal is satisfied that the applicant satisfies the requirements of cl.485.221(1).

Barbara DavidsonTribunal Saves Applicant From Error