1611081 (Migration)

[2016] AATA 4266

1611081 (Migration) [2016] AATA 4266 (15 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Keith Anthony Langley
Mrs Holly Louise Langley
Mr Louie Anthony Langley
Miss Minnie Rose Langley

CASE NUMBER:  1611081

DIBP REFERENCE(S):  BCC2016/1281941

MEMBER:Antonio Dronjic

DATE:15 August 2016

PLACE OF DECISION:  Melbourne

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(1) of Schedule 2 to the Regulations

Statement made on 15 August 2016 at 11:47am

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 18 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 25 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 visas because the first named applicant (the applicant) did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because at the time of delegates’ decision, the applicant’s skills have not been assessed for the occupation of a Wall and Floor Tiler (ANZSCO 333411) by the relevant assessing authority.

4. The applicants applied to the Tribunal on 21 July 2016 for review of the delegate’s decision. With the review application, the applicants’ provided a copy of the primary decision record.

5. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the visa applicants’ favour on the basis of the material before it, so there was no need for the visa applicants to be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising 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.

   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 the evidence before the Tribunal, the applicant nominated the occupation of a Wall and Floor Tiler (ANZSCO 333411) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

10. On 21 July 2016, the applicants submitted to the tribunal a provisional skill assessment results from TRA dated 18 July 2016 as evidence that the first named applicant was successful with his application.

11. The Tribunal finds that the first named applicant’s skills have been assessed during the last three years as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore satisfies the requirements of cl.485.224(1). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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 (1) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member