1511937 (Migration)

[2015] AATA 3913

1511937 (Migration) [2015] AATA 3913 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pangestu Arnold Davidson

CASE NUMBER:  1511937

DIBP REFERENCE(S):  BCC2015/719515

MEMBER:Mary Cameron

DATE:21 December 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.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 21 December 2015 at 10:50am

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 17 August 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 5 March 2015. 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 because no evidence was provided to show that the applicant had had his skills assesses by the relevant body as being suitable for his nominated occupation.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the review applicant on the basis of the material before it pursuant to s.360(2) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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’.

8. ‘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 15/091.

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

10. The visa application was accompanied by a declaration indicating that the applicant had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority, together with a payment receipt for his Provisional Skills Assessment by TRA dated 3 February 2015. 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?

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. At the time of the primary decision the applicant had provided email correspondence regarding a negative skills assessment which he considered to have resulted from unclear information in his academic results provided to TRA. His correspondence states that he has sought clarification from his education provider to provide to TRA for re-assessment of his skills.

14. The applicant has subsequently provided the Tribunal with a TRA Provisional Skills Assessment Review Application Result dated 25 August 2015 assessing him as successful for the occupation of Chef – 351311.

15. Based on this evidence the Tribunal finds that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation.

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

    How and where was the qualification obtained?

17. 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).

18. Documentary material contained on the Departmental file indicates that the applicant’s skills were assessed on the basis of an Advanced Diploma of Hospitality undertaken in Australia. The Tribunal is satisfied, from the Department’s electronic records that the applicant held a Subclass 573 (Higher Education Sector) Student visa for the duration of his course.

19. After reviewing the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website the Tribunal is satisfied that the Advanced Diploma of Hospitality from Le Cordon Bleu Australia Pty Ltd was a registered course at the relevant time.

20. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa. The Tribunal further finds that the qualification was obtained as a result of studying a registered course and that the applicant therefore satisfies the requirements of cl.485.224(2).

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

22. 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

23. 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.

    Mary Cameron
    Member