Garzon Yepes (Migration)

[2017] AATA 215

Garzon Yepes (Migration) [2017] AATA 215 (16 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jury Garzon Yepes

CASE NUMBER:  1619330

DIBP REFERENCE(S):  BCC2016/2648498

MEMBER:Wan Shum

DATE:16 February 2017

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.485.224 of Schedule 2 to the Regulations.

Statement made on 16 February 2017 at 3:30pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Graduate Work stream – Subclass 485 – Skills assessment – Hearing not required – Child-Care Centre Manager – TRA Provisional Skills Assessment provided

LEGISLATION

Migration Act 1958, s 65

Education Services for Overseas Students Act 2000

Migration Regulations 1994, Schedule 2, r 1.03, 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 Immigration on 2 November 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 August 2016. 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).

3. The delegate refused the visa finding that the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because the applicant had not yet provided a suitable skills assessment from the relevant assessing authority.

4. The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent. The agent forwarded a copy of a successful outcome from the relevant assessing authority when making the application for review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration and that a hearing was not necessary in the circumstances.

   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 cl.485.224.

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. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa (cl.485.224(2)).

9. Following the lodgement of her Subclass 485 visa application, the applicant received a request to provide further information from the Department on 28 September 2016. Her agent informed the Department on 20 October 2016 that the applicant was awaiting the outcome of a review which would be forwarded upon receipt. The delegate proceeded with a decision to refuse to grant the visa on 2 November 2016 on the basis that there was no assessment that her skills were assessed as suitable. The agent sought review on behalf of the applicant and submitted a copy of her TRA Provisional Skills Assessment Review application result.

10. This indicated that she has been assessed as successful for the occupation of Child-Care Centre Manager (134111) on 15 November 2016. The Tribunal sought verification of the assessment from TRA. TRA confirmed that the applicant holds a valid successful Provisional Skills Assessment for the occupation of Child-Care Centre Manager (134111). TRA advised that the assessment was based on the applicant’s Diploma of Early Childhood Education and Care from Southern Cross Education Institute issued on 13 July 2016 and her vocational placement with Thinking Kids Children’s Centre.

11. The Tribunal therefore finds 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. The assessment does not refer to any period of validity.

12. Therefore the requirements of cl.485.224(1) are met. Given that no validity period is specified in the letter, cl.485.224(1A) does not apply.

13. As 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 (ESOS Act), to provide the course to overseas students’ (r.1.03).

14. Having regard to the records on the Provider Registration and International Management System (PRISMS), Southern Cross Education Institute is registered under the ESOS Act and the Tribunal finds that the qualification was obtained as a result of studying a registered course. The applicant therefore 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 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

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.485.224 of Schedule 2 to the Regulations.

    Wan Shum
    Member