Hehir (Migration)

[2017] AATA 2267

Hehir (Migration) [2017] AATA 2267 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lisa Josephine Hehir

CASE NUMBER:  1716446

DIBP REFERENCE(S):  BCC2016/433942

MEMBER:Catherine Carney-Orsborn

DATE:6 November 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.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 06 November 2017 at 10:43am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Child care centre manager – Successful skills assessment

LEGISLATION
Education Services for Overseas Students Act 2000, s.9
Migration Act 1958, s 65

Migration Regulations 1994, r.1.15I, r.1.03, Schedule 2, cl 485.223, 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 14 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 22 December 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 visas because the first named applicant (the applicant) did not satisfy cl.485. 224 of Schedule 2 to the Regulations because the applicant did not provide a completed Skills Assessment from the appropriate authority.

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

5. After lodging her review application the applicant provided a skills assessment from Trades Recognition Australia dated 9 August 2017. As the Tribunal is now able to make a favourable decision there is no need to have a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 those requirements.

   Had the applicant applied for a relevant skills assessment?

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

10. ‘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.

11. On the evidence before the Tribunal, the applicant nominated the occupation of Child Care Centre Manager – 134111 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Authority (TRA).

12. 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?

13. 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.

14. On the evidence before the Tribunal, the applicant nominated the occupation of Child Care Centre Manager which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA). 

15. After lodging her review application the applicant provided a copy of a skills assessment from TRA dated 9 August 2017 stating the application had been assessed as successful for the occupation Child Care Centre Manager. The assessment advises it can be used to apply for a Subclass 485 visa.

16. The Tribunal has considered this skills assessment and finds that the applicant has now provided evidence that her skills for the nominated skilled occupation, Child Care Centre Manager, have been assessed, during the last 3 years, by a relevant assessing authority, TRA, as suitable for that occupation. She therefore meets cl.485.224(1).

17. 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).

18. The Tribunal has the information and evidence held on the Department file and provided by the applicant.

19. 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.

20. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

21. 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

22. 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.

    Catherine Carney-Orsborn
    Member