1609140 (Migration)

[2016] AATA 4762

1609140 (Migration) [2016] AATA 4762 (2 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amy Alany Chan

CASE NUMBER:  1609140

DIBP REFERENCE(S):  BCC2016/1017401

MEMBER:Alison Mercer

DATE:2 December 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 02 December 2016 at 1:07pm

CATCHWORDS

Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – cl 485.224 – Positive skills assessment – Child Care Manager – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, r.1.03
Education Services for Overseas Students Act 2000

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 10 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 9 March 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 of Schedule 2 to the Regulations because she had not provided a positive skills assessment from the relevant assessing authority for her nominated skilled occupation.

4. The Tribunal received a review application from the applicant on 20 June 2016.  The applicant also provided a copy of the delegate’s decision and an authority by which she appointed a registered migration agent, Ms Anna Jun, as her representative and authorised recipient for correspondence for the purposes of the review.

5. On 16 November 2016, the applicant’s agent provided a scanned copy of a positive skills assessment issued to the applicant on 23 June 2016 by Trades Recognition Australia (TRA) for the occupation of Child Care Manager (ANZSCO code 134111).  On 17 November 2016, the Tribunal received confirmation by email from TRA that the skills assessment obtained by the applicant on 23 June 2016 was as a result of a successful review application by her to TRA, and that it was genuine and valid.

6. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act. 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 Child Care Centre Manager (ANZSCO code 134111) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

11. The material on the Department’s file indicates that the applicant provided evidence with her online application indicating that she had applied to TRA for a skills assessment in this occupation on 19 January 2016.

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 Tribunal finds that 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. At the time of the delegate’s decision on 10 June 2016, the applicant had applied for a skills assessment in her skilled occupation from TRA, but had received an unsuccessful outcome, for which she had sought an internal review with TRA.

16. As at the time of the Tribunal’s consideration, the applicant has now provided a successful skills assessment from TRA (following a review process) for her nominated skilled occupation of Child Care Centre Manager, issued to her on 23 June 2016. The Tribunal has independently verified with TRA that this skills assessment is genuine and valid. The Tribunal notes that no validity period limitation is expressed in the skills assessment.

17. Accordingly, the Tribunal is satisfied that the applicant has been assessed during the last 3 years by the relevant assessing authority (TRA) as having suitable skills for her nominated skilled occupation, and that that assessment is valid at the time of the Tribunal’s decision.

18. Therefore, the Tribunal is satisfied that the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

19. 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).

20. Although not explicitly stated, it appears that the skills assessment issued to the applicant was based on the fact that she completed a Diploma of Early Childhood Education and Care at the Central Institute of Technology in Western Australia between 3 February 2014 and 4 December 2015.  The Tribunal is satisfied from the Department’s records that the applicant held a subclass 572 (Vocational Education and Training Sector) student visa throughout this period.

21. The Tribunal has reviewed the Department of Education and Training’s Provider Registration and International Student Management System (PRISMS) website and is satisfied that the applicant’s course and education provider were registered for these purposes.

22. As the qualification was obtained as a result of studying a registered course, the Tribunal finds that the applicant satisfies the requirements of cl.485.224(2).

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

24. 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

25. 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