1609077 (Migration)

[2016] AATA 4291

1609077 (Migration) [2016] AATA 4291 (30 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Simarjit KAUR

CASE NUMBER:  1609077

DIBP REFERENCE(S):  BCC2016/837589

MEMBER:Karen Synon

DATE:30 August 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 30 August 2016 at 8:16am

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 14 June 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 February 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 she did not provide evidence of a successful skills assessment,

4. The applicants applied for review of the primary decision on 20 June 2016 and provided a copy of the department’s decision.

5. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour on the basis of the material before it.  It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence 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.

   Had the applicant applied for a relevant skills assessment?

8. 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’.

9. ‘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.

10. On the evidence before the Tribunal, the applicant nominated the occupation of ‘Dental Technicians’ which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

11. The primary decision records that the applicant applied for a skills assessment from TRA at the time of application and provided the receipt number 13712414327622.  A receipt from TRA on the department file (at folio 36) records its reference number as TRA16/999306400.

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 has before it the applicant’s successful skills assessment issued by TRA for the occupation of ‘Dental Technician’ (ANZSCO Code 411213).  It is dated 23 June 2016.  The Tribunal has validated this skills assessment with TRA (at folio 29).

16. It does not appear to have an expiry date and therefore cl.485.224(1A) Is not relevant.

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

    How and where was the qualification obtained?

18. 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).

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.  By reference to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) database the Tribunal is satisfied that the applicant’s Diploma of Dental Technology was/is a registered course delivered by Menzies Institute of Technology.[1]  As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

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

20. 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

21. 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.

    Karen Synon
    Member