1500750 (Migration)

[2016] AATA 3098

1500750 (Migration) [2016] AATA 3098 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marie Kristine Mann

CASE NUMBER:  1500750

DIBP REFERENCE(S):  BCC2014/2136352

MEMBER:David Dobell

DATE:21 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(e) of Schedule 2 to the Regulations

Statement made on 21 January 2016 at 1:15pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 August 2014. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visa on 30 December 2014 on the basis that cl.457.223(4)(e) was not met, as the applicant had not provided evidence of a successful Trades Recognition Australia (TRA) Skills Assessment, and hence had not demonstrated that she had the necessary skills for the occupation of cook.

5. The Tribunal was able to make a favourable decision on the evidence before it so no hearing was necessary.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Demonstrate skills 

6. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(e). This states that, if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the nominated occupation in the manner specified by the Minister. In this case the nominated occupation is cook.

7. The applicant did not provide to the delegate any evidence concerning a TRA assessment as requested. However, on 25 June 2015 the applicant provided to the Tribunal a Vetassess skilled migration assessment result dated 9 February 2015, which stated that the applicant has an assessment outcome of ‘successful’ as a cook (commercial cookery)- ANZSCO 351411.  The Tribunal notes that Vetassess is responsible for conducting skills assessments on behalf of the TRA.

8. The applicant therefore satisfies the requirements of cl.457.223(4)(e) as she has demonstrated to the Tribunal that she has the necessary skills of a cook.

9. Given the above the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

   DECISION

10. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(e) of Schedule 2 to the Regulations

    David Dobell
    Member