Fagan (Migration)

[2017] AATA 73

Fagan (Migration) [2017] AATA 73 (9 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Conor Fagan

CASE NUMBER:  1610852

DIBP REFERENCE(S):  BCC2016/1102091

MEMBER:Mary-Ann Cooper

DATE:9 January 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.485.224 of Schedule 2 to the Regulations.

Statement made on 09 January 2017 at 3:59pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Skills assessment – Carpenter – Trades Recognition Australia – Skills assessment provided

LEGISLATION

Migration Act 1958, s 65,

Education Services for Overseas Students Act 2000

Migration Regulations 1994, r 1.03, r 1.15I, r 2.26B, cl 485.224, IMMI 16/060

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 8 July 2016 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 14 March 2016. 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 of Schedule 2 to the Regulations because he failed to provide evidence that his skills had been assessed as suitable for his nominated skilled occupation.

4. The applicant appeared before the Tribunal by telephone on 15 December 2017 to give evidence and present arguments. 

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 includes cl.485.224 of Schedule 2 to the Regulations. This criterion is concerned with the applicant’s skills in relation to his or her nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

   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. ‘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. The relevant instrument for this purpose is Legislative Instrument IMMI 16/060.

9. ‘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 for this purpose is also Legislative Instrument IMMI 16/060.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Carpenter (ANZSCO code 331212), which is a relevantly specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

11. In his visa application the applicant claimed to have applied for his skills assessment on 11 March 2016 with TRA. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant provided evidence of an unsuccessful skills assessment. Consequently the delegate was not satisfied that the applicant’s nominated skilled occupation had been relevantly assessed and refused the application.

12. Notwithstanding the tribunal’s request in its hearing invitation, the applicant did not provide any further information prior to the hearing, nor did the applicant respond to the hearing invitation. At the hearing he claimed that he had applied for another skills assessment on 12 December 2016 and requested that the Tribunal wait for the outcome before making its decision. The Tribunal asked why he had “sat on his hands” since the Department’s decision on 8 July 2016 and told him it was disinclined to allow him any further time in this context. Following his further submissions the Tribunal allowed until 20 January 2017 for the provision of the assessment. On 6 January 2017 the applicant supplied a TRA skills assessment dated 5 January 2017 indicating that his skills had been assessed as suitable for his nominated occupation of Carpenter. The Tribunal has verified this assessment with TRA.

13. Therefore the requirements of cl.485.224(1) are met.

14. The assessment does not express any validity period and therefore cl.485.224(1A) does not apply.

    How and where was the qualification obtained?

15. 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).

16. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of his completion of a Certificate III in Carpentry at the Polytechnic West, (WA Department of Training and Workforce Development), which is a registered course and which he completed in December 2015 while holding 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).

17. It follows that the applicant meets the requirements of cl.485.224 as a whole.

    CONCLUSION

18. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.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

19. 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 of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member