Antonsen (Migration)

[2018] AATA 5906

Antonsen (Migration) [2018] AATA 5906 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Heidi Antonsen
Ms Maria Augusta Martins Echeverria Fretes

CASE NUMBER:  1816626

DIBP REFERENCE(S):  BCC2018/1240340

MEMBER:Susan Trotter

DATE:9 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application 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 09 November 2018 at 4:20pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visas – Subclass 485 (Temporary Graduate) – evidence of the required skills assessment – skills assessment period has not ended – studying a registered course – decision under review remitted

LEGISLATION

Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.224; r 1.03

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 (the Minister) on 30 May 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named applicant is a 33 year old citizen of Norway. She first arrived in Australia in 2010 pursuant to a Subclass 572 student visa and has undertaken various studies in Australia. She applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 13 March 2018. The second-named applicant applied for the visa on the basis of being a member of the family unit of the first-named applicant.

3. 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 (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.

4. The delegate refused the visas because the first-named applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because she did not provide evidence of the required skills assessment from the appropriate authority to the Department of Home Affairs (the Department).

5. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 6 June 2018.

6. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear at a hearing before the Tribunal.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The first-named applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.224 of Schedule 2 to the Regulations. These criteria are concerned with an applicant’s skills in relation to their nominated skilled occupation.

9. Clause 485.224(1) requires that an applicant’s skills for a nominated skilled occupation have been assessed, during the last three 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).

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

11. If an applicant’s skills were assessed on the basis of a qualification obtained in Australia while an 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 s.9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03).

12. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Has the first-named applicant been assessed as suitable for the nominated occupation?

    (b)  If the assessment is expressed to be valid for a particular period, has that period not ended?

    (c)  Were the first-named applicant’s skills assessed on the basis of a qualification or qualifications obtained in Australia while the first-named applicant held a student visa with the qualification, or qualifications, obtained as a result of studying a registered course or courses?

    Issue 1 - Has the first-named applicant been assessed as suitable for the nominated occupation?

13. Despite various correspondence between the first-named applicant’s representative and the Department, as at 30 May 2018, the first-named applicant had not provided a copy of a successful skills assessment to the Department. However, on 6 June 2018, the first-named applicant provided the Tribunal with a favourable skills assessment dated 5 June 2018, for the nominated occupation of Social Worker, from the relevant assessing authority, the Australian Association of Social Workers (AASW).

14. The first-named applicant’s skills have therefore been assessed within the last three years by a relevant assessing authority as suitable for the nominated skilled occupation.

15. The requirements of cl.485.224(1) are therefore met.

    Issue 2 - If the assessment is expressed to be valid for a particular period, has that period not ended?

16. The skills assessment provided by the first-named applicant expressly states that it is valid for three years. That three year period has not yet ended.

17. The requirement of cl.482.224(1A) is therefore met.

    Issue 3 – Were the first-named applicant’s skills assessed on the basis of a qualification or qualifications obtained in Australia while the first-named applicant held a student visa with the qualification, or qualifications, obtained as a result of studying a registered course or courses?

18. The skills assessment by AASW states that the assessment was based upon the qualifications of Master of Social Work Studies at the University of Queensland and Bachelor of Psychological Science submitted by the first-named applicant.

19. Information submitted by the first-named applicant to the Department, as well as information on the Provider Registration and International Student Management System (PRISMS) database maintained online by the Department of Education and Training and information from the educational institutions at which the first-named applicant studied, confirm that the first-named applicant completed a Master of Social Work Studies at the University of Queensland in 2017 (with study dates of 29 February 2016 to 30 November 2017) and completed a Bachelor of Psychological Science at Griffith University in 2014 (with study dates of 27 February 2012 to 31 October 2014).

20. The Department’s records show that the first-named applicant held a Subclass 573 (Higher Education Sector) visa, a student visa, authorising study from 19 November 2011 to 1 December 2014 and from 8 February 2016 to 15 March 2018.

21. Having had regard to the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, the Tribunal is further satisfied that the above courses were registered courses.

22. The Tribunal is therefore satisfied that the first-named applicant’s skills were assessed on the basis of qualifications obtained in Australia while the first-named applicant held a student visa and that the qualifications were obtained as a result of studying registered courses.

23. The requirements of cl.485.224(2) are therefore met.

    Conclusion

24. The Tribunal has found that the first-named applicant meets the requirements of cl.485.224(1), (1A) and (2) such that they meet the requirements of cl.485.224 as a whole.

25. The second-named applicant applied on the basis of being a member of the family unit of the first-named applicant. Accordingly, the second-named applicant’s application will be determined by reference to the outcome of the first-named applicant’s application on remittal to the Department for reconsideration.

26. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

    DECISION

27. The Tribunal remits the application 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.

    Susan Trotter
    Member