DA COSTA ALMEIDA DO CARMO (Migration)

[2018] AATA 3641

DA COSTA ALMEIDA DO CARMO (Migration) [2018] AATA 3641 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms SAMANTA DA COSTA ALMEIDA DO CARMO
Mr RICARDO DO CARMO

CASE NUMBER:  1824687

DIBP REFERENCE(S):  BCC2018/2156978

MEMBER:Jennifer Cripps Watts

DATE:6 September 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.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 06 September 2018 at 5:00pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary graduate) – Skilled assessment – Evidence of successful skills assessment – Australian qualification – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15I, 2.26B 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 7 August 2018 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 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 visas because the first named applicant (the applicant) did not satisfy cl.485.224 of Schedule 2 to the Regulations because she did not provide evidence of a successful skills assessment.

4. The applicants were represented in relation to the review by their 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).

9. On the evidence before the Tribunal, the applicant nominated the occupation of Child Care Centre Manager (ANZSCO 134111) which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified in IMMI 18/051 is Trades Recognition Australia (TRA).

10. The visa application that is the subject of this review was lodged on 18 May 2018.  The applicant provided evidence, by way of a receipt from TRA dated 14 May 2018 indicating that $300 had been paid for the application, that she had applied for a skills assessment for the nominated occupation by the TRA at the time of application. 

11. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant satisfies 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 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).

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 applicant has provided the Tribunal with a letter from TRA, dated 13 August 2018, indicating that she has been assessed as successful for the (nominated) occupation of Child Care Centre Manager (ANZSCO 134111) and states that she can use the assessment to lodge an application for a subclass 485 visa.

15. The Tribunal is satisfied that at the time of this decision the applicant has been assessed during the last three years by a relevant assessing authority as suitable for the nominated skilled occupation.

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

    How and where was the qualification obtained?

17. 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).

18. On the evidence, the applicant has completed the following registered courses in Australia:

    a.17/04/2017 to 06/04/2018      Diploma Early Childhood Education and Care

    b.11/07/2016 to 31/03/2017      Cert III Early Childhood Education and Care

19. 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.

20. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

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

22. 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

23. 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.485.223 of Schedule 2 to the Regulations; and

    ·cl.485.224 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member