Dromey (Migration)

[2018] AATA 3639

Dromey (Migration) [2018] AATA 3639 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sean Andrew Dromey

CASE NUMBER:  1821843

DIBP REFERENCE(S):  BCCC2018/1121734

MEMBER:Jennifer Cripps Watts

DATE:4 September 2018

PLACE OF DECISION:  Sydney

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 04 September 2018 at 2:38pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary graduate) – Skills assessment – Copy of Provisional Skills Assessment provided to the Tribunal – Australian qualification – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03 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 12 July 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 7 March 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 he did not provide evidence that his skills had been assessed by a relevant assessing authority as suitable for his nominated skilled occupation of Chef (ANZSCO code 351311).

4. 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 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. It 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.

   Had the applicant applied for a relevant skills assessment?

6. 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’.

7. On the evidence before the Tribunal, the applicant nominated the occupation of Chef 315311 which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

8. The visa application that is the subject of this review was made on 7 March 2018.  The applicant indicated, when he made the 485 visa application, that he had applied for skills assessment by TRA and provided the delegate with a receipt confirming lodgement, dated 6 March 2018.  The delegate requested that he provide evidence of having been assessed by (relevantly) TRA , during the last three years, as required under cl.485.224(1).  The applicant’s migration agent requested, and was granted, an additional 120 days to provide evidence of the assessment – from the time of lodgement of the skills assessment, 10 April 2018.

9. By 9 July 2018, evidence of the skills assessment had still not been provided to the delegate.  The applicant’s representative requested a further extension of time.  It was not granted and the visa was refused because, at the time of application, the applicant did not meet cl.485.224(1).

10. The applicant has subsequently provided the Tribunal with a copy of a letter from TRA, dated 20 July 2018, stating his Provisional Skills Assessment has been successful.  The letter verified the assessment as successful for the purposes of Subclass 485 visa applications.

11. The Tribunal is satisfied that at the time of this decision the applicant’s Provisional Skills Assessment application has been assessed as successful by TRA for the occupation of Cook (351411) and Chef (351311) and that the applicant meets cl.485.224(1).

    How and where was the qualification obtained?

12. 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).

13. The Tribunal has had regard to the applicant’s Provider Registration and International Student Management System (PRISMS) and is satisfied that, while holding a student visa, he studied registered courses and obtained the following qualifications in Australia:

    a.Diploma of Hospitality Management              December 2017

    b.Certificate IV Commercial Cookery               October 2017

    c.Certificate III Commercial Cookery                December 2016

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

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

16. On the basis of the above findings, the Tribunal finds 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

17. 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.

    Jennifer Cripps Watts
    Member