1611010 (Migration)

[2016] AATA 4349

1611010 (Migration) [2016] AATA 4349 (8 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss DA WON KIM

CASE NUMBER:  1611010

DIBP REFERENCE(S):  BCC2016/1866923

MEMBER:Denise Connolly

DATE:8 September 2016

PLACE OF DECISION:  Sydney

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 08 September 2016 at 1:45pm

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 15 July 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 27 May 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 the applicant.

3. The delegate refused the visa on the basis that the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because at the time of the delegate’s decision the applicant did not have evidence that her skills had been assessed as suitable for the nominated occupation of Chef.

4. Since then the applicant has provided evidence to the Tribunal that she has a successful skills assessment. Accordingly the Tribunal is able to make a favourable decision without the need for a hearing.

5. The applicant was represented in relation to the review by her 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 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 14/048.

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

11. At the time the visa application was made, the applicant provided the TRA reference number and an acknowledgement from TRA of the skills assessment application. The Tribunal finds the visa application was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority. Therefore the applicant satisfies the requirements of cl.485.223.

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

12. 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).

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

14. The applicant has provided to the Tribunal a copy of the TRA skills assessment dated 3 August 2016 confirming the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation. There is no suggestion that the skills assessment is valid only for a particular period. Therefore the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

15. 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).

16. The applicant has provided evidence that her skills were assessed on the basis of her Certificate III and Certificate IV qualifications obtained in Australia from Le Cordon Bleu in the period January 2014 to September 2015. The educational documents provided by the applicant confirm that the courses were CRICOS registered courses.

17. The applicant’s movement records confirm that the applicant was the holder of a Subclass 572 visa during that period.

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

19. 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.

    Denise Connolly
    A/g Senior Member