1609222 (Migration)

[2016] AATA 4264

1609222 (Migration) [2016] AATA 4264 (12 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karawgodage Don Randika Prasad JAYAWARDANE

CASE NUMBER:  1609222

DIBP REFERENCE(S):  BCC2016/1082972

MEMBER:Miriam Holmes

DATE:12 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.485.224(1) of Schedule 2 to the Regulations.

Statement made on 12 August 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 6 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 12 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(1) of Schedule 2 to the Regulations because the applicant did not provide a skills assessment stating that he was suitable for the nominated skilled occupation.

4. On 15 July 2016 the Tribunal received online a TRA Provisional Skills Assessment Review application result from the applicant. The Tribunal determined to make a decision on the information available.

5. The applicant was represented in relation to the review by his registered migration agent.

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 485.224 of Schedule 2 to the Regulations. This criterion is 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. On 12 March 2016 the applicant lodged an online application for a Graduate Work Stream (Class VC) (subclass 485) visa. In the visa application the applicant nominated the skilled occupation of Motor Mechanic (General) (ANZSCO 321211). He also noted that he applied for a skills assessment from Trades Recognition Australia on 10 March 2016.

10. On 30 May 2016 the applicant provided to the Department a skills assessment dated 9 May 2016 from Trades Recognition Australia which noted that the skills assessment had been assessed as unsuccessful for the occupation of Motor Mechanic (general) – 321211. On this basis the delegate refused the visa application.

11. On 15 July 2016 the applicant provided to the Tribunal a skills assessment dated 12 July 2016 from Trades Recognition Australia which noted that the skills assessment had been assessed as successful for the occupation of Motor Mechanic (General) – 321211.

12. On 25 July 2016 Trades Recognition Australia confirmed that the applicant holds a valid successful Provisional Skills Assessment in the occupation of Motor Mechanic (general) – 321211 and the outcome was finalised on 12 July 2016. The Tribunal is satisfied that Trades Recognition Australia is the relevant assessing authority for the nominated occupation of Motor Mechanic (general) – 321211 (see IMMI 16/060).

13. On the basis of the new skills assessment, the Tribunal is satisfied 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. Therefore the requirements of cl.485.224(1) met.

14. It follows that the applicant meets the requirements of cl.485.224(1).

15. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.224(1) 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

16. 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.

    Miriam Holmes
    Senior Member