JAHALY (Migration)

[2017] AATA 287

JAHALY (Migration) [2017] AATA 287 (23 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Judith Florence Evodie Jahaly
Mr Rakesh Jahaly

CASE NUMBER:  1617059

DIBP REFERENCE(S):  BCC2009/505359

MEMBER:Alison Mercer

DATE:23 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 886 visa:

·cl.886.212 of Schedule 2 to the Regulations; and

·cl.886.223 of Schedule 2 to the Regulations.

Statement made on 23 February 2017 at 3:44pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 886 – Positive skills assessment – Pastrycook – Hearing not required – Trades Recognition Australia assessment – Qualification obtained in Australia

LEGISLATION

Education Services for Overseas Students Act 2000, s 9

Migration Act 1958, s 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, r 1.03, r 1.15I, cl 886.212, cl.886.223, IMMI 12/068

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 30 September 2016 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 December 2009. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is subclass 886, the criteria for which are set out in Part 886 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 visas because the first named applicant (the applicant) did not satisfy cl.886.223 of Schedule 2 to the Regulations as she had not provided a positive skills assessment from the relevant assessing authority for her nominated skilled occupation of Pastrycook. The delegate refused to grant the second named applicant (the applicant’s husband) a visa on the basis that he did not satisfy the secondary visa criteria to be a member of the family unit of a person who satisfied the primary criteria, and there was no evidence that he satisfied the primary criteria himself.

4. The Tribunal received a review application from the applicants on 14 October 2016.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Adewale Oladejo, to be their representative and authorised recipient for correspondence.

5. On 13 December 2016, the applicant provided to the Tribunal a scanned copy of a skills assessment issued to her on 9 December 2016 by Trades Recognition Australia (TRA) stating that her skills had been assessed as suitable for her nominated occupation of Pastrycook (351112).

6. On 16 February 2017, the Tribunal received email verification from TRA that the above skills assessment was genuine and valid.

7. 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

8. The issue in the present case is whether the applicant has a positive skills assessment for her nominated skilled occupation.

   Had the applicant applied for a relevant skills assessment?

9. Clause 886.212 requires that at the time of visa application, the applicant had applied for an assessment of her skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

10. 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: r.1.15I. A ‘relevant assessing authority’ is a person or body specified by the Minister in the relevant instrument: r.1.03. The relevant instrument is IMMI 12/068.

11. On the evidence before the Tribunal, the applicant nominated the occupation of Pastrycook which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

12. The material on the Department file indicates that the applicant had obtained a positive skills assessment from TRA for the occupation of Pastrycook on 6 July 2009. Accordingly, at the time of application on 16 December 2009, the Tribunal finds that the applicant had applied for a skills assessment for the nominated skilled occupation by the relevant assessing authority and therefore satisfies the requirements of cl.886.212.

13. The Tribunal notes that the applicant voluntarily withdrew this skills assessment from TRA on 7 July 2010, according to an email from TRA to the Department. Nevertheless, this does not change the fact that she had applied to TRA for a skills assessment prior to making her subclass 886 visa application.

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

14. Clause 886.223(1) requires that, at the time of decision, the applicant’s skills for the nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

15. As noted above, the applicant was originally issued with a positive skills assessment as a Pastrycook by TRA on 6 July 2009 but withdrew this assessment on 7 July 2010.

16. However, she has now provided a new skills assessment from TRA, issued to her on 9 December 2016, stating that her skills are suitable for her nominated occupation of Pastrycook.  The Tribunal has independently verified with TRA that this skills assessment is genuine and valid.

17. Accordingly, the Tribunal finds that the applicant’s skills have been assessed by a relevant assessing authority as suitable for the nominated skilled occupation and that the applicant therefore satisfies the requirements of cl.886.223(1).

    How and where was the qualification obtained?

18. 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.886.223(2). ‘Registered course’ means 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.

19. The Department’s records indicate that the applicant completed a Diploma of Hospitality Management (Patisserie Stream) at William Angliss Institute in Melbourne, Australia, between 11 February 2008 and 4 December 2009, while holding a subclass 572 (Vocational Education and Training Sector) visa.  The Tribunal is satisfied from the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website that this is a registered course provided by a registered education provider.

20. Therefore, the Tribunal finds that cl.886.223(2) is met and it follows that the applicant meets the requirements of cl.886.223.

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.  As the second named applicant applied for the visa on the basis of being a member of the applicant’s family unit, his application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    DECISION

22. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 886 visa:

    ·cl.886.212 of Schedule 2 to the Regulations; and

    ·cl.886.223 of Schedule 2 to the Regulations.

    Alison Mercer
    Member