Bajwa (Migration)

[2018] AATA 2438

Bajwa (Migration) [2018] AATA 2438 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alamjeet Singh Bajwa

CASE NUMBER:  1811188

DIBP REFERENCE(S):  BCC2018/317067

MEMBER:Mary Sheargold

DATE:6 June 2018

PLACE OF DECISION:  Melbourne

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.485.224 of Schedule 2 to the Regulations.

Statement made on 06 June 2018 at 2:02pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Chef ANZSCO code 351311 – Successful skills assessment provided – Qualification obtained in Australia – Decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.03, Schedule 2, cls 485.223, 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 Immigration on 4 April 2018 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 19 January 2018. 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 visa because the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because he did not provide evidence that his skills had been assessed by a relevant assessing authority as suitable for his nominated skilled occupation of Chef (ANZSCO code 351311).

4. The Tribunal received a review application from the applicant on 19 April 2018.  The applicant was represented in relation to the review by his registered migration agent.  On 2 May 2018, the Tribunal received a copy of the applicant’s skills assessment dated 24 April 2018 from Trades Recognition Australia.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider it necessary to conduct a hearing: pursuant to s.360(2)(a) of the Act, the Tribunal was able to find in favour of the applicant on the basis of the material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant 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. This clause is concerned with the applicant’s skills in relation to his 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?

7. 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).

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

9. According to the primary decision record, the applicant answered ‘yes’ to the question, “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?” when he submitted his Subclass 485 visa application.  On 12 February 2018, the Department wrote to the applicant requesting evidence that the applicant’s skills had been assessed by a relevant assessing authority as suitable for his nominated skilled occupation, and requested this evidence be provided to the Department within 28 days.

10. The primary decision record notes that at the time the delegate made their decision, the applicant had not provided further correspondence or documents to the Department, and that the 28 day period set out in the letter dated 12 February 2018 had lapsed.

11. Both the applicant and Trades Recognition Australia have provided the Tribunal with a copy of a successful skills assessment undertaken by Trades Recognition Australia for the occupation of Chef, ANZSCO code 351311.  This assessment is dated 24 April 2018.  Therefore, the requirements of cl.485.224(1) are met.

12. The Tribunal notes that the assessment provided by Trades Recognition Australia on 24 April 2018 does not express validity for a particular period, and so the requirement in cl.485.224(1A) is not relevant to this application.

    How and where was the qualification obtained?

13. 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).

14. The applicant provided the Department with copies of documentation showing that he has obtained a Certificate IV in Commercial Cookery from Stanley College on 2 September 2017, and a Diploma of Hospitality Management from Stanley College on 8 December 2017. Stanley International College Pty Ltd trading as Stanley College is registered, under Part 2, Division 3 of the Education Services for Overseas Students Act 2000, to provide these courses to overseas students.

15. 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).

16. It follows that the applicant meets the requirements of cl.485.224.

17. 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

18. 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.485.224 of Schedule 2 to the Regulations.

    Mary Sheargold
    Member