1504322 (Migration)

[2015] AATA 3306

1504322 (Migration) [2015] AATA 3306 (17 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rudolph Franscois Neuhoff

CASE NUMBER:  1504322

DIBP REFERENCE(S):  BCC2014/2036813

MEMBER:Alison Mercer

DATE:17 August 2015

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.485.224 of Schedule 2 to the Regulations.

Statement made on 17 August 2015 at 4:00pm

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 12 March 2015 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 19 August 2014. 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(a) of Schedule 2 to the Regulations as he had not provided a positive skills assessment for his nominated skilled occupation despite being requested to do so.

4. The Tribunal received a review application from the applicant on 29 March 2015.  It was accompanied by a copy of the delegate’s decision.

5. On 15 July 2015, the applicant provided a range of documents to the Tribunal via email.  These included scanned copies of 2 provisional skills assessments issued by Trades Recognition Australia (TRA), dated 5 November 2014 and 18 March 2015, which were both unsuccessful and a new skills assessment application lodged with the TRA by the applicant on 15 July 2015, which was accompanied by a detailed work reference from his previous employer addressing the concerns identified by the TRA skills assessment of 18 March 2015.

6. The applicant appeared before the Tribunal via videoconference on 22 July 2015 to give evidence and present arguments.  The applicant confirmed that he had lodged a new skills assessment application with TRA on 15 July 2015 and had requested expedited processing.  He was hopeful that he would receive the outcome in 30 days or so.  The Tribunal indicated that it considered that it was reasonable for it to defer its decision until the outcome of this application was known, and agreed to defer its decision until 19 August 2015.  The applicant agreed to provide the outcome as soon as possible, and to update the Tribunal as to the progress of the application if there had been no outcome by 19 August 2015.  The applicant told the Tribunal that he understood that if he was successful, the Tribunal would remit his application back to the Department with a direction that he met cl.485.224(a) but that if he was not successful, the Tribunal would make its decision on that basis as it did not consider it reasonable to defer its decision in order for him to make a fourth application to TRA.

7. On 15 August 2015, the Tribunal received an email from the applicant attaching a scanned copy of a positive provisional skills assessment issued to him by TRA on 13 August 2015 for the occupation of Carpenter.

8. On 17 August 2015, an officer of the TRA verified that this skills assessment had been genuinely issued to the applicant and was valid.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant is seeking to satisfy the primary criteria for a subclass 485 visa in the Graduate Work stream which includes cl.485.224 of Schedule 2 to the Regulations. This criterion is concerned with the applicant’s skills in relation to his nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

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

11. 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).

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

13. ‘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 14/048.

14. On the evidence before the Tribunal, the applicant nominated the occupation of Carpenter, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

15. The material on the Department file indicates that the applicant originally applied to TRA for a skills assessment in August 2014.  He provided a TRA provisional skills assessment dated 5 November 2014 to the Department, but this was negative, as TRA assessed his skills as not suitable for the occupation of Carpenter as:

    ·he had not provided a work statement from his employer or a Registered Training Organisation (RTO);

    ·various dates of payslips he provided from his employer coincided with periods that he was overseas and this discrepancy needed to be explained; and

    ·his International English Language Testing System (IELTS) results had expired before he applied for the skills assessment and therefore he did not meet the eligibility criteria when he applied.

16. The applicant provided evidence of a second unsuccessful skills assessment dated 5 March 2015, in which TRA raised the fact that aspects of the applicant’s practical work experience with Neuhome Pty Ltd were not able to be verified. 

17. The subsequent application made by the applicant to TRA on 15 July 2015 was accompanied by information from the principal of Neuhome Pty Ltd and as a result, the applicant received a positive provisional skills assessment from TRA for his nominated occupation of Carpenter on 13 August 2015.  The Tribunal has confirmed the genuineness and validity of this skills assessment with TRA. 

18. Therefore, the Tribunal is satisfied that the requirements of cl.485.224(1) are met.  The skills assessment is not expressed to be valid for a specific period, and thus cl.485.224(1A) is not relevant to this case.

    How and where was the qualification obtained?

19. 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).

20. On the evidence before the Tribunal, including the Department’s movement records, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, being a Certificate III in Carpentry he undertook at the West Coast Institute between 1 July 2012 and 23 June 2014.  The Tribunal is satisfied from the CRICOS website that this was a registered course.

21. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

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

23. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.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

24. 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.485.224 of Schedule 2 to the Regulations.

    Alison Mercer
    Member