Jayamanna Mohottige Dona (Migration)

[2020] AATA 1554

Jayamanna Mohottige Dona (Migration) [2020] AATA 1554 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Romeena Shashini Jayamanna Mohottige Dona

CASE NUMBER:  1928851

DIBP REFERENCE(S):  BCC2019/1331198

MEMBER:R. Skaros

DATE:7 February 2020

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

Statement made on 07 February 2020 at 5:55pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment by the relevant assessing authority – occupation of Chef – skills assessment provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, 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 25 September 2019 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 15 March 2019. 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 by the relevant assessing authority.

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

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

   Consideration of claims and evidence

5. Visa Class VC contains Subclass 485. 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 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 criterion is concerned with the applicant’s skills being assessed as suitable in relation to their nominated skilled occupation.

6. 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).

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

7. The applicant nominated the occupation of Chef (ANZSCO 351311) in their application and indicated that they had applied to TRA for a skills assessment on 15 March 2019.

8. On 22 May 2019, the delegate wrote to the applicant requesting evidence of a skills assessment. The applicant did not give the delegate evidence of their skills assessment within the time allowed and the delegate found that the applicant did not meet cl.485.224.

9. On 8 November 2019, the applicant provided the Tribunal with a copy of a successful skills assessment issued by TRA on 6 November 2019 for the occupation of Chef. TRA confirmed with the Tribunal on 11 November 2019 that the assessment was validly issued.

10. 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. The applicant meets cl.485.224(1).

    DECISION

11. 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.

    R. Skaros
    Senior Member