Gyawali (Migration)

[2020] AATA 3352

Gyawali (Migration) [2020] AATA 3352 (7 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Samrat Raj Gyawali
Mrs Sirjana Basyal
Mr Saksham Gyawali

CASE NUMBER:  1934224

DIBP REFERENCE(S):  BCC2019/3533792

MEMBER:R.Skaros

DATE:7 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl.485.224(1) of Schedule 2 to the Regulations.

Statement made on 07 August 2020 at 12:18pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment by relevant authority – completed assessment provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.224(1), (2)

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 15 November 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 July 2019. 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 to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because the delegate was not satisfied the skills of the applicant for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements in cl.485.224(1).

   Has the applicant been assessed as suitable for the nominated occupation?

8. 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).

9. The applicant nominated the occupation of Engineering Technologist (ANZCO 233914) which is a specified skilled occupation. For that occupation, the relevant assessing authority is Engineers Australia.

10. The applicant indicated in his visa application that he had applied to Engineers Australia for a skills assessment on 15 July 2019. On 30 August 2019 and 9 October 2019 the Department requested the applicant to provide evidence of the outcome of the skills assessment application, however, the applicant did not to do so within the period specified by the Department.

11. The Tribunal has now received from the applicant evidence that his skills have been assessed as suitable for the nominated skilled occupation. The assessment was completed on 3 July 2020 which is during the last three years. The assessment has been verified by the Tribunal. There is nothing to suggest that the validity period of the assessment has ended.

12. Given the above, the Tribunal is satisfied that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation and that the period has not ended. The Tribunal finds that the requirements of cl.485.224(1) are therefore met.

13. As the applicant now meets cl.485.224(1), the appropriate course is to remit the visa applications for the first, second and third named applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

14. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.224(1) of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member