1611001 (Migration)

[2016] AATA 4445

1611001 (Migration) [2016] AATA 4445 (23 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Intaek Seo
Ms Gilsu Lee

CASE NUMBER:  1611001

DIBP REFERENCE(S):  BCC2016/1110493

MEMBER:Katie Malyon

DATE:23 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 23 September 2016 at 4:36 pm

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 July 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 March 2016. Visa Class VC contains Subclass 485 only. For visa applications made before 1 July 2013, there is also a Subclass 487 visa: 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 visas because the first named applicant, Mr Seo, did not satisfy cl.485.224 of Schedule 2 to the Regulations because he did not provide a favourable skill assessment at the time of the delegate’s decision.

4. The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Mr Seo is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.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 Mr Seo meets those requirements.

   Had the applicant applied for a relevant skills assessment?

6. Clause 485.223 of Schedule 2 of the Regulations 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’ from a ‘relevant assessing authority’.

7. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations: r.1.03 of the Regulations. Essentially, an occupation is a skilled occupation if it is specified as such by the Minister in an instrument in writing. ‘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 of the Regulations. For applicants who applied for a Subclass 485 visa after 1 July 2015 but before 1 July 2016 the current instrument made under r.2.26B of the Regulations is Legislative Instrument IMMI 16/068 of 6 May 2016.

8. On the evidence before the Tribunal, Mr Seo nominated the occupation of Carpenter ANZSCO 331212 which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is Trade Recognition Australia (TRA).

9. It is not in dispute that Mr Seo provided the Department at the time he lodged his Subclass 485 visa application with a receipt number from TRA confirming that he had applied for a skills assessment from that organisation in respect of his occupation. As the visa application, when made by Mr Seo on 14 March 2016, was accompanied by evidence of an application for a skills assessment of his nominated skilled occupation by a relevant assessing authority the Tribunal concurs with the delegate and finds that Mr Seo satisfies the requirements of cl.485.223 of Schedule 2 of the Regulations.

   Has the applicant been assessed as suitable for the nominated occupation?

10. Clause 485.224(1) of Schedule 2 of the Regulations 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) of Schedule 2 of the Regulations.

11. On 26 August 2016, Mr Seo provided the Tribunal with a Provisional Skills Assessment Application Result dated 18 July 2016 issued by TRA confirming Mr Seo meets the requirements for the occupation of Carpenter ANZSCO 331212 (the Assessment) for the purposes of applying to the Department for a Subclass 485 visa.

12. Based on the evidence provided, the Tribunal finds that Mr Seo has been assessed during the last 3 years by TRA, the relevant assessing authority, for his nominated skilled occupation of Carpenter ANZSCO 331212.  The Assessment does not specify a validity period.

13. In light of these findings, the requirements of cl.485.224(1) of Schedule 2 of the Regulations are met and the requirements of cl.485.224(1A) of Schedule 2 of the Regulations are not applicable.

    How and where was the qualification obtained?

14. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a Student visa, there is an additional requirement that the qualification must have been obtained as a result of studying a registered course: cl.485.224(2) of Schedule 2 of the Regulations. ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under s.9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’: r.1.03 of the Regulations.

15. In this regard, Mr Seo provided the Department with the following documents:

    ·     Confirmation of Enrolment in respect of a Certificate III in Carpentry course offered by TAFE NSW Technical and Further Education Commission commencing 4 March 2013;

    ·     Transcript of Academic Record dated 10 August 2015 issued by TAFE’s Hunter Institute RTO Provider No. 90002 Ourimbah Campus confirming his eligibility to receive a Certificate III in Carpentry;

    ·     Confirmation of Enrolment in respect of a Certificate IV in Building and Construction (Building) course offered by TAFE NSW Technical and Further Education Commission commencing 2 February 2015; and,

    ·     Transcript of Academic Record dated 14 March 2016 issued by TAFE’s Sydney Institute RTO Provider No. 90003 Ultimo College confirming his eligibility to receive a Certificate IV in Building and Construction (Building).   

16. On the evidence before the Tribunal, Mr Seo’s skills were assessed by TRA on the basis of both his Certificate III in Carpentry and his Certificate IV in Building and Construction (Building) qualifications. These qualifications were obtained in Australia while Mr Seo held Student visas. Furthermore, his qualifications were obtained as a result of his studying registered courses at TAFE NSW campuses. As Mr Seo’s qualifications were obtained as a result of his studying registered courses, Mr Seo satisfies the requirements of cl.485.224(2) of Schedule 2 of the Regulations.

17. On the basis of the above findings, the Tribunal finds that Mr Seo meets the requirements of cl.485.224 of Schedule 2 to the Regulations. Accordingly, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for grant of the visa.

18. The second named applicant, Ms Gilsu Lee, applied on the basis of being a member of the family unit of the first named applicant.  Accordingly, her application will be determined by reference to the outcome of Mr Seo’s application on remittal to the Department for reconsideration.

    DECISION

19. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.224 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member