1603636 (Migration)

[2016] AATA 4115

1603636 (Migration) [2016] AATA 4115 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Victoria Carola Symington

CASE NUMBER:  1603636

DIBP REFERENCE(S):  BCC2016/129820

MEMBER:Mary Cameron

DATE:14 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

·cl.189.212(1)(a) of Schedule 2 to the Regulations

Statement made on 14 July 2016 at 3:32pm

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 1 March 2016 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The visa applicant was invited to apply for the visa on 12 December 2015 and applied for the visa on 8 January 2016 nominating the skilled occupation of Chef ANZSCO 351311.

3. The criteria for the grant of a Subclass 189 visa are set out in Part 189 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 who are applicants for the visa need satisfy only the secondary criteria.

4. In the present case, the delegate refused to grant the visa because the applicant did not satisfy cl.189.212. Specifically the delegate was not satisfied that at the time that she was invited to apply for the visa, the relevant assessing authority for the applicant's nominated occupation had assessed her skills as suitable for that occupation. The delegate noted that the applicant had stated in her online visa application that she had obtained a skills assessment from Trades Recognition Australia (TRA) with reference number TS253941 dated 1 October 2015, but also noted that she had not provided a copy of that skills assessment. She had instead supplied a document, which she listed as a skills assessment, but was in fact a copy of her qualification in Commercial Cookery.

5. The Tribunal received a review application from the applicant on 17 March 2016. It was accompanied by a copy of the delegate's decision and a submission from the applicant attaching several documents, including a Skilled Migration Assessment Result issued by William Angliss Institute under contract to Trades Recognition Australia (TRA) for the conduct of skills assessments and dated 1 October 2015 (Tribunal file, f.17)

6. On 8 July 2016 the Tribunal wrote to TRA requesting verification of the status and authenticity of the applicant’s skills assessment.

7. On 13 July 2016 TRA confirmed that the applicant was assessed by William Angliss Institute with a successful outcome.  Her skills assessment was for the occupation of Chef (ANZSCO Code 351311). The assessment was completed on 1 October 2015 and is valid and current.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Suitable Skills Assessment

9. Clause 189.212(1) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa.

10. ‘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). ‘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. The relevant instrument for these purposes is Legislative Instrument IMMI 16/060. This provides that the occupation of Chef is a skilled occupation for these purposes and that the relevant assessing authority is TRA.

11. The visa application indicates that the nominated occupation is Chef, the assessing authority is Trades Recognition Australia (TRA), the date of the skills assessment is 1 October 2015 and the reference/receipt number is TS253941.

12. The applicant provided the Department with a copy of a document which she listed as her skills assessment but was in fact a copy of her Certificate IV in Commercial Cookery. Because the applicant did not provide a valid skills assessment assessing her skills in relation to her nominated skilled occupation the Department found that she did not satisfy the criteria for the grant of the visa and the application was refused.

13. The applicant has subsequently provided the Tribunal with a skills assessment dated 1 October 2015 which assessed the applicant’s skills as suitable for the occupation of Chef – 351311. The validity of that skills assessment has been verified by TRA.

14. The Tribunal is satisfied on the basis of the evidence provided that the applicant’s skills have been assessed as suitable for the nominated skilled occupation of Chef by the relevant assessing authority, and they had been assessed at the time that the applicant was invited to apply for the visa on 12 December 2015.

15. The Tribunal is therefore satisfied that cl.189.212(1)(a) is met.

16. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

17. The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 189 visa:

    ·cl.189.212(1)(a) of Schedule 2 to the Regulations

    Mary Cameron
    Member