1513558 (Migration)

[2016] AATA 4463

1513558 (Migration) [2016] AATA 4463 (3 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anuradha Randika Hettiarachchi

CASE NUMBER:  1513558

DIBP REFERENCE(S):  BCC2015/2194623

MEMBER:Antonio Dronjic

DATE:3 October 2016

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 (1) of Schedule 2 to the Regulations.

Statement made on 03 October 2016 at 12:29pm

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 September 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 31 July 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(1) of Schedule 2 to the Regulations because at the time of delegates’ decision, the applicant’s skills have been assessed as unsuccessful for the occupation of a System Analyst (ANZSCO 261112)

4. The applicant applied to the tribunal on 5 October 2015 for review of the delegate’s decision. With the review application, the applicants’ representative provided a copy of the primary decision record.

5. Under subsection 360(2)(a) of the Act the tribunal considered that it should decide the review in the visa applicant’s favour on the basis of the material before it, so there was no need for the visa applicant to be invited to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

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. 485.224 of Schedule 2 to the Regulations.

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

8. 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).

9. On the evidence before the tribunal, in his visa application form, the applicant nominated the occupation of a System Analyst (ANZSCO 261112) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Australian Computer Society (ACS).

10. On 19 September 2016, the applicant’s representative submitted to the tribunal a subclass 485 skills assessment results from ACS dated 25 September 2015 as evidence that the applicant was successful with his application.

11. The tribunal finds that the applicant’s skills have been assessed during the last three years as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore satisfies the requirements of cl.485.224(1). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    Antonio Dronjic
    Member