Casapao (Migration)

[2018] AATA 2204

Casapao (Migration) [2018] AATA 2204 (24 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Felipe Vergara Casapao
Ms Charity Caparros Casapao

CASE NUMBER:  1726766

DIBP REFERENCE(S):  BCC2017/1779695

MEMBER:Katie Malyon

DATE:24 April 2018

PLACE OF DECISION:  Sydney

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 24 April 2018 at 7:46 am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – subclass 485– Chef ANZSCO 351311 – Positive Provisional Skills Assessment Result provided – Tribunal verified the assessment as genuine– Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65,360
Migration Regulations 1994, Schedule 2, cl 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 13 October 2017 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 18 May 2017. 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, Mr Felipe Vergara Casapao, did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because, although in his Subclass 485 visa application he indicated that he had applied to Trades Recognition Australia (TRA) for a skill assessment of his nominated occupation of Chef ANZSCO 351311 and, furthermore, he provided a receipt number in respect of his skill assessment lodged with TRA on 6 May 2017, Mr Casapao did not provide a positive skill assessment by the time of the delegate’s decision despite multiple requests to do so. Therefore, he did not meet cl.485.224(1) and, as such, he did not meet cl.485.224 as a whole. A copy of the delegate’s decision was provided to the Tribunal.

4. The Tribunal invited Mr Casapao to a hearing scheduled for 23 May 2018.  However, on 16 April 2018, Mr Casapao provided the Tribunal with a positive Provisional Skills Assessment Result issued to him by TRA dated 12 April 2018 in the occupation of Chef – 351311 and Cook - 351411.  The assessment states that it can be used to apply to the Department for a Subclass 485 visa.  The Tribunal independently sought verification of this skill assessment and was advised in writing by TRA on 23 April 2018 that Mr Casapao ‘holds a valid successful Provisional Skills Assessment in the occupation of Chef – 351311 and Cook - 351411’ and, further, that this ‘outcome was finalised on 12/04/2018’.

5. In reaching its decision, the Tribunal did not consider the hearing to be necessary as it was able to find in favour of Mr Casapao on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Mr Casapao 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 his skills in relation to his nominated skilled occupation. The issue in the present case is whether Mr Casapao 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) of Schedule 2 to the Regulations.

9. Mr Casapao nominated the occupation of Chef ANZSCO 351311 in his Subclass 485 visa application.  At the time of lodgement of his Subclass 485 visa application on 18 May 2017, Mr Casapao provided evidence of having applied for an assessment of his skills for his nominated occupation.  In this regard, he provided the Department with details of a receipt from TRA dated 6 May 2017.

10. The delegate gave Mr Casapao additional time to provide a skills assessment outcome.  However, on 13 October 2017 Mr Casapao provided the Department with a copy of a negative outcome from TRA dated 26 July 2017.  As noted in the delegate’s decision, a copy of which was provided to the Tribunal, Mr Casapao’s representative advised the delegate that the application to TRA was unsuccessful because Mr Casapao had not provided evidence of having completing a Certificate IV: he did not do this because he was under the impression that his Diploma was a higher qualification than a Certificate IV.  Accompanying his application lodged with the Department, Mr Casapao provided evidence of completing a Certificate III in Commercial Cookery on 8 June 2016 at the Australis Institute of Technology and Education (the Australis Institute) as well as a Diploma of Hospitality at the Australia Institute on 19 March 2017.  On the basis that a favourable skill assessment was not provided to the Department, the delegate refused to grant the visa.

11. Mr Casapao has provided the Tribunal with a TRA skills assessment dated 12 April 2018 advising him that his Provisional Skills Assessment application has been successful, not only for the nominated occupation of Chef - 351311 but also for the occupation of Cook – 351411.  The assessment advises that it can be used to apply for a Subclass 485 visa.  The Tribunal has independently contacted TRA and verified the assessment as genuine. 

12. The Tribunal has considered the skills assessment provided and finds that Mr Casapao has now provided evidence that his skills for the nominated skilled occupation of Chef ANZSCO 351311 have been assessed during the last 3 years by a relevant assessing authority – in this case, TRA - as suitable for that occupation. Accordingly, he meets cl.485.224(1) of Schedule 2 to the Regulations.

13. On the basis of the above findings, the Tribunal finds that Mr Casapao meets the requirements of cl.485.224(1) 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

14. 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.

    Katie Malyon

    
    Member