Claffey (Migration)

[2019] AATA 6468

Claffey (Migration) [2019] AATA 6468 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Cathal Kieran Claffey
Ms Carol Elizabeth Wynne

CASE NUMBER:  1930988

DIBP REFERENCE(S):  BCC2019/3967935

MEMBER:R. Skaros

DATE:21 November 2019

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 21 November 2019 at 11:49am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Carpenter (331212) – successful TRA skills assessment result provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
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 22 October 2019 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 10 August 2019. 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 visas because the first named applicant (the applicant) did not satisfy cl.485. 224(1) of Schedule 2 to the Regulations because the delegate was not satisfied the skills of the applicant for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements in cl.485.224(1).

   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. The applicant nominated the occupation of Carpenter (331212) which is a specified skilled occupation. For that occupation, the relevant assessing authority is Trades Recognition Australia (TRA).

9. The applicant applied for a skills assessment to TRA prior to lodging his visa application. The Department requested the applicant to provide evidence of the outcome of the skills assessment application, however, the applicant was unable to do so within the period specified by the Department.

10. The Tribunal has now received from the applicant evidence that his skills have been assessed as suitable for the nominated skilled occupation. The assessment was completed on 9 October 2019, which is during the last three years. The assessment has been verified by the Tribunal. There is nothing to suggest that the validity period of the assessment has ended.

11. Given the above, the Tribunal is satisfied that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation and that the period of validity has not ended. The Tribunal finds that the requirements of cl.485.224(1) are therefore met.

12. As the applicant now meets cl.485.224(1), the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

13. In relation to the second named applicant, the Tribunal notes that the Department refused her application on the basis that she was not a member of the family unit of a person that holds a relevant visa.  The Tribunal notes that on remittal of this matter, and based on the outcome of the first named applicant’s application for the visa, the Department will reconsider the second named applicant’s eligibility 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.

    R. Skaros

    Senior Member