CHEUNG (Migration)

[2019] AATA 1544

CHEUNG (Migration) [2019] AATA 1544 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ka Leong CHEUNG

CASE NUMBER:  1833505

DIBP REFERENCE(S):  BCC2018/2193298

MEMBER:Warren Stooke AM

DATE:1 February 2019

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.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 01 February 2019 at 10:41am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)– Graduate Work stream – carpenter – evidence of skills assessment provided – Trades Recognition Australia – qualification obtained as result of studying registered course – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.15, 2.26, Schedule 2, cls 485.223, 485.224
Education Services for Overseas Students Act 2000, s 9

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 30 October 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 21 May 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(1) of Schedule 2 to the Regulations because the applicant did no provide a skills assessment outcome letter from TRA at the time the application was reviewed nor within the extended period provided to submit such documentation, which was 18 September 2018.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   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 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.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223 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’.

8. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.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 r.2.26B of the Regulations (r.1.03). The relevant instrument, at the time of application was Legislative Instrument IMMI 14/048 Register of Instruments - Skilled visas, which has now been replaced by IMMI 18/051.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Carpenter – ANZSCO 331212, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia, with a Reference Number: TRA18/999323878.

10. The Tribunal is satisfied that the applicant has been assessed by Trades Recognition Australia, with a Reference Number: TRA18/999323878 and at the time of application the applicant satisfied the English language requirement, together with 2 years of study.

11. As the visa application, on the evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority has been confirmed, the applicant does satisfy the requirements of cl.485.223.

    Has the applicant been assessed as suitable for the nominated occupation?

12. 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).

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

14. The Tribunal is satisfied on the evidence, that the applicant has completed two years of study and made an application for a Class VC - Subclass 485 visa within 6 months of graduation, with the course completing in 23 March 2018 and the application being made on 21 May 2018.

15. Therefore the requirements of cl.485.224 are met.

    How and where was the qualification obtained?

16. 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).

17. 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. In this regard, the applicant successfully undertook a Certificate III in Carpentry at the Everthought College of Construction. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

    Conclusion on Suitable Skills Assessment

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

19. 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

20. 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.485.223 of Schedule 2 to the Regulations; and

    ·cl.485.224 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member