Aeria (Migration)

[2024] AATA 583

Aeria (Migration) [2024] AATA 583 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joel Michael Aeria

REPRESENTATIVE:  Mr Avinash Poinen (MARN: 1171786)

CASE NUMBER:  2206411

HOME AFFAIRS REFERENCE(S):          BCC2021/29498

MEMBER:Warren Stooke AM

DATE:8 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa

Statement made on 8 March 2024 at 4:42pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – chef – skills assessment not provided to department or tribunal – currently working in different occupation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223(1), 485.224

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 Home Affairs on 11 April 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 March 2021. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 on the basis that the applicant did not satisfy cl 485.224 of Schedule 2 to the Regulations because the applicant had not provided a skills assessment with the application for the nominated occupation of Chef – ANZSCO Code: 351311.

4. The applicant appeared before the Tribunal on 8 March 2024 to give evidence and present arguments.

5. The applicant provided evidence that he had received a copy of the delegate’s decision from the Department and had read the decision. The applicant stated that he understood the 485 visa was refused due to the lack of evidence.

6. The applicant stated that he provided a copy of the decision to the Tribunal with his application for review.

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cls 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. Neither of these requirements apply if the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 1 March 2021. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224.

10. The applicant was granted a Bridging Visa A on 1 March 2021 with condition 8501 to maintain health insurance.

11. The applicant confirmed in evidence that he had completed the following courses of study at the Empyrean Education Institute:

    a.Certificate III in Commercial Cookery – awarded 6 February 2019;

    b.Certificate IV in Commercial Cookery – awarded 19 August 2019;

    c.Diploma of Hospitality Management – awarded 11 December 2019;

    d.Advanced Diploma of Hospitality Management – awarded 15 February 2021.

12. The applicant provided evidence that he undertook an IELTS English language test on 25 August 2020 with an overall score of 6.5.

13. On 16 November 2021, the Department corresponded with the applicant requesting evidence of an AFP National Police Certificate and a Skills Assessment, which was required to be provided within 90 days.

14. Further, on 2 May 2022, the Tribunal requested the applicant provide a Skills Assessment and as at the date of decision a Skills Assessment has not been provided by the applicant.

15. Following the hearing the applicant provided the Tribunal with a copy of an AFP – National Police Certificate dated 4 March 2021 that identified ‘no disclosable court outcomes’.

16. The Tribunal asked the applicant if he had undertaken a skills assessment and the applicant responded: “No”.

17. The applicant stated at hearing that he did not undertake a skills test due to Covid and the Tribunal noted that there has been sufficient time since Covid to acquire a skills assessment and that his place of residence, Perth, was least affected by Covid lock-downs.

18. The applicant stated that he was currently working as a support worker in the NDIS sector and that he had not worked in a restaurant since 2022.

    Had the applicant applied for a relevant skills assessment?

19. Clause 485.223(1) 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’.

20. ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03).

21. On the evidence before the Tribunal, the applicant nominated the occupation of Chef – ANZSCO Code: 351311, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia.

22. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl 485.223(1).

23. It follows that the applicant does not meet the requirements of cl 485.224.

24. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Warren Stooke AM
    Member