Dave (Migration)

[2021] AATA 5514

Dave (Migration) [2021] AATA 5514 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vijay Natvarlal Dave

REPRESENTATIVE:  Mr Man Mohan Makkar (MARN: 1388274)

CASE NUMBER:  2117267

HOME AFFAIRS REFERENCE(S):          BCC2020/2579470

MEMBER:K. Chapman

DATE:15 December 2021

PLACE OF DECISION:  Brisbane

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(1) of Schedule 2 to the Regulations.

Statement made on 15 December 2021 at 4:14pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Chef – skills assessment – Trades Recognition Australia (TRA) – suitability for nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 Home Affairs on 4 November 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 4 November 2020. 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 (Cth) (‘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 to grant the visa because, in their view, the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations, as he had not provided evidence that his skills had been assessed by a relevant assessing authority as suitable for his nominated skilled occupation of Chef (ANZSCO 351311).

4. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act. Accordingly, for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. 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?

6. The applicant nominated the occupation of Chef (351311) which is a specified skilled occupation. For that occupation, the relevant assessing authority is Trades Recognition Australia (TRA).

7. 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).

8. The applicant was unable to provide a successful skills assessment from TRA, with respect to his nominated occupation, within the time frame specified by the Department. The applicant submitted to the Tribunal a copy of his successful provisional skills assessment from TRA dated 6 January 2021, for the occupations of Chef (351311) and Cook (351411). No validity period is indicated in this skills assessment. The Tribunal has recently confirmed the veracity of the skills assessment with TRA.  

9. On balance, the Tribunal is satisfied that the applicant has now been assessed, during the last three years, by a relevant assessing authority as suitable for the nominated skilled occupation of Chef. Therefore, the applicant satisfies the requirements of cl.485.224(1). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

10. 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(1) of Schedule 2 to the Regulations.

    K. Chapman
    Member