Gautam (Migration)

[2018] AATA 2825

Gautam (Migration) [2018] AATA 2825 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gautam

CASE NUMBER:  1814542

DIBP REFERENCE(S):  BCC2017/4990833

MEMBER:Cathrine Burnett-Wake

DATE:21 June 2018

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(1) of Schedule 2 to the Regulations.

Statement made on 21 June 2018 at 8:17am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream - Chef – Skills assessment had not been provided to the Department – Skills assessment subsequently provided to the tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, 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 3 May 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 28 December 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.

3. The delegate refused the visa because the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because the applicant had not provided evidence that his skills had been assessed by a relevant assessing authority as suitable for his nominated skilled occupation, CHEF ANZSCO 351311.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   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 485.224 of Schedule 2 to the Regulations. This criteria is 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.

   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.

8. The applicant has provided the Tribunal with a copy of his successful TRA Provisional Skills Assessment for the occupation of both Cook and Chef, dated 7 May 2018.

9. As the Tribunal has received evidence demonstrating the applicant has been assessed as a Chef, his nominated occupation, the Tribunal is satisfied that cl.485.224(1) is met and has determined that the matter should be remitted for reconsideration.

   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.

    Cathrine Burnett-Wake
    Member