1608390 (Migration)

[2016] AATA 4572

1608390 (Migration) [2016] AATA 4572 (24 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Takeo Nakajima

CASE NUMBER:  1608390

DIBP REFERENCE(S):  BCC2016/124417

MEMBER:Antonio Dronjic

DATE:24 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 24 October 2016 at 3:22pm

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 19 May 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 8 January 2016. 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 not been assessed as suitable for his nominated occupation of an Accountant (ANZSCO 221111)

4. The applicant applied to the Tribunal on 8 June 2016 for review of the delegate’s decision. With the review application, the applicant 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 issue 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.485.223 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.

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

10. On the evidence before the Tribunal, the applicant nominated the occupation of an Accountant (ANZSCO 221111) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is CPA Australia.

11. On 7 September 2016, the applicant submitted to the tribunal a provisional skill assessment results from CPA 5 September 2016 as evidence that the applicant was successful with his skills assessment application.

12. 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

13. 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