Ho (Migration)

[2018] AATA 2260

Ho (Migration) [2018] AATA 2260 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aelred Hui Seng Ho

CASE NUMBER:  1807710

DIBP REFERENCE(S):  BCC2017/4239376

MEMBER:Amanda Mendes Da Costa

DATE:11 May 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.485.223 of Schedule 2 to the Regulations; and

·Cl.485.224 of Schedule 2 to the Regulations.

Statement made on 11 May 2018 at 3:23pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Chef – Whether the applicant had applied for a relevant skills assessment at the time of the visa application – Evidence of application for relevant skills assessment provided with visa application – Whether the applicant has been assessed as suitable – Relevant skills assessment issued – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223, 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 8 March 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 13 November 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 of Schedule 2 to the Regulations because the applicant did not provide a skills assessment for his nominated skilled occupation.

4. The Tribunal has perused both the file of the Department and that of the Tribunal.  On consideration of the evidence before it, the Tribunal determined that a hearing was not required and that a decision on the review could be made on the basis of the documentation received.

5. The applicant was represented in relation to the review by his 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 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’.

9. ‘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.

10. On the evidence before the Tribunal, the applicant nominated the occupations of Chef ANZCO 351311, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia.

11. When he lodged the visa application, the applicant declared in his form that on 12 November 2017 he applied for a skills assessment from Trades Recognition Australia and provided a receipt number 10022637.

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. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224 (1A).

14. The Tribunal notes that the applicant provided it with a skills assessment for his nominated skilled occupation Chef ANZCO 351311.  This assessment is dated 18 March 2018 and was provided by Trades Recognition Australia, the applicant’s relevant assessing authority.

15. The Tribunal is satisfied that the applicant has been assessed during the past three years by a relevant assessing authority as suitable for the nominated skilled occupation.

16. The Tribunal notes that the skills assessment provided to it by the applicant is not expressed to be valid for a particular period.  Therefore the Tribunal finds cl.485.224 (1A) is met.

17. The Tribunal finds that the requirements of cl.485.224 are met.

18. 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

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.485.223 of Schedule 2 to the Regulations; and

    ·cl.485.224 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member