Duong (Migration)

[2017] AATA 2738

Duong (Migration) [2017] AATA 2738 (11 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hoang Quy Duong

CASE NUMBER:  1717321

DIBP REFERENCE(S):  BCC2017/1310682

MEMBER:Alison Mercer

DATE:11 December 2017

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 11 December 2017 at 11:51am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement to provide positive skills assessment – Delay in obtaining skills assessment – Skills assessment provided

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 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 28 July 2017 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 April 2017. 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. The applicant in this case applied in the Graduate Work stream.

3. The delegate refused the visa because he found that the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations, which required that, at the time of decision, the applicant’s skills had been assessed by the relevant assessing authority for his nominated skilled occupation as suitable for that occupation. The delegate found that the applicant had nominated the occupation of Chef (ANZSCO code 351311) and had stated in his online visa application that he had applied for a skills assessment to Trades Recognition Australia (TRA) on 4 April 2017. However, despite several requests from the delegate, the applicant did not provide a positive skills assessment from TRA.

4. The Tribunal received a review application from the applicant on 8 August 2017, which was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Graeme Carmody as his representative and authorised recipient for correspondence for the purposes of the review.

5. On 26 October 2017, the Tribunal received an email from the applicant’s agent, attaching a copy of a TRA skills assessment issued to the applicant on 10 October 2017 indicating that the applicant’s skills had been assessed as suitable for his nominated occupations of Cook (ANZSCO code 351411) and Chef (ANZSCO code 351311) for the purposes of making a subclass 485 visa application. The applicant’s agent stated that the applicant had relied on his former agent to provide documents to TRA, and the agent’s failure to do so had resulted in the processing of the applicant’s skills assessment being substantially delayed. The agent asked the Tribunal to remit the matter on the papers without holding a hearing, in view of the fact that the applicant now met cl.485.224.

6. On 31 October 2017, the Tribunal received independent verification from TRA that the skills assessment issued to the applicant on 10 October 2017 was valid.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 cl.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?

10. 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’.

11. ‘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 is Legislative Instrument IMMI 16/059.

12. On the evidence before the Tribunal, the applicant nominated the occupation of Chef which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

13. From the information on the Departmental file, the Tribunal is satisfied that the applicant provided evidence that he had applied to TRA for a skills assessment on 4 April 2017 with his visa application.

14. 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?

15. 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).

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

17. The applicant has now provided to the Tribunal a skills assessment issued to him by TRA on 10 October 2017 for the nominated occupations of Cook and Chef (the latter being the skilled occupation nominated by the applicant in his subclass 485 visa application). The Tribunal has independently verified with TRA that this skills assessment is genuine and valid (no validity period is expressed). As this was issued to him during the last 3 years, the Tribunal is satisfied that the requirements of cl.485.224)(1) and (1A) are met.

    How and where was the qualification obtained?

18. 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).

19. The information on the Department’s file indicates that the applicant completed a Certificate III and Certificate IV in Commercial Cookery, and a Diploma of Hospitality, at the Australian College of Applied Education in Perth between February 2015 and December 2016.  The Tribunal is satisfied from the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website that these courses are registered courses.  It is further satisfied from the Department’s movement records that the applicant held a subclass 573 and then a subclass 500 visa throughout his study, and that these visas authorised him to study in Australia.

20. Therefore, 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 qualifications were obtained as a result of studying registered courses, 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 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.

    Alison Mercer
    Member