1601542 (Migration)

[2016] AATA 4664

1601542 (Migration) [2016] AATA 4664 (17 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khalid Jamil

CASE NUMBER:  1601542

DIBP REFERENCE(S):  BCC2015/2840755

MEMBER:Alison Mercer

DATE:17 November 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.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 17 November 2016 at 3:15pm

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 3 February 2016 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 29 September 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 as he had not provided evidence that he had a positive skills assessment from the relevant assessing authority for his nominated skilled occupation.

4. The Tribunal received a review application from the applicant on 10 February 2016.  It was accompanied by a copy of the delegate’s decision and a letter dated 3 February 2016 issued to the applicant by Trades Recognition Australia (TRA) advising that the review of his provisional skills assessment application had been successful for the occupation of Electronic Equipment Trades Worker (ANZSCO 342313).

5. On 10 May 2016, the Tribunal received verification by email from TRA confirming that the skills assessment issued to the applicant by TRA on 3 February 2016 was genuine and valid.

6. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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’.

10. ‘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 16/060..

11. On the evidence before the Tribunal, the applicant nominated the occupation of Electronic Equipment Trades Worker, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA. (The Tribunal notes that the delegate refers in her decision to the applicant’s nominated occupation as Electronic Instrument Trades Worker, but this is not the occupation nominated by the applicant). The documents on the Department’s file include a copy of the skills assessment application made by the applicant to TRA on 28 September 2015, which he provided when he lodged his visa application.

12. 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?

13. 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).

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

15. The Tribunal finds that the applicant’s skills have been assessed by TRA on 3 February 2016 as suitable for his nominated occupation (Electronic Equipment Trades Worker) for the purposes of his subclass 485 visa application.  The validity of this skills assessment has been confirmed by TRA.  Accordingly, the Tribunal is satisfied that the applicant’s skills have been assessed in the last 3 years by the relevant assessing authority for his nominated skilled occupation and that the assessment is valid.

16. The Tribunal is therefore satisfied that the requirements of cl.485.224 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. Although the skills assessment issued by TRA on 3 February 2016 does not specify on which qualification(s) it was based, it appears that it was issued (in part at least) on the basis that the applicant had completed a Diploma of Electronics and Communications Engineering at the Technical Education Development Institute in Melbourne, Australia, between 1 August 2012 and 30 June 2014.  The Department’s records indicate that the applicant held a subclass 572 (Vocational Education and Training) student visa throughout this period.

19. 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 Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website indicates that the applicant’s course and course provider are both registered.  As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

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

21. 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

22. 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.

    Alison Mercer
    Member