Jolly (Migration)

[2019] AATA 1148

Jolly (Migration) [2019] AATA 1148 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simranpreet Singh Jolly

CASE NUMBER:  1823439

DIBP REFERENCE(S):  BCC2018/1582992

MEMBER:Alison Mercer

DATE:10 January 2019

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 10 January 2019 at 3:46pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Motor Mechanic – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.15, 2.26, Schedule 2, cls 485.223, 485.224
Education Services for Overseas Students Act 2000, s 9

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 31 July 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 9 April 2018. 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, which required him to provide, by the time of decision, a positive skills assessment from the relevant assessing authority for his nominated skilled occupation. The delegate found that although the applicant indicated in his online visa application that he had applied to Trades Recognition Australia (TRA) for a skills assessment for his nominated occupation of Motor Mechanic (General) (ANZSCO code 321211), he did not provide the skills assessment to the delegate when requested to on 24 May 2018 and 25 June 2018.

4. The Tribunal received a review application from the applicant on 14 August 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Pawan Kumar Bhambi, as his representative and authorised recipient for correspondence.

5. On 14 December 2018, the applicant’s agent provided a scanned copy of a skills assessment issued to the applicant by TRA on 12 September 2018 indicating that the applicant’s skills had been assessed as suitable for his nominated occupation of Motor Mechanic (General) (ANZSCO code 321211).

6. On 17 December 2018, the Tribunal requested verification of this skills assessment from TRA, and this was provided by TRA on 18 December 2018.

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 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?

9. 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’.

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 17/072.

11. On the evidence before the Tribunal, the applicant nominated the occupation of Motor Mechanic (General) (ANZSCO code 321211), which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the TRA.

12. The Tribunal has reviewed the Department file and is satisfied that at the time that the applicant made the visa application on 9 April 2018, it was accompanied by evidence that the applicant had applied for a skills assessment to TRA on 28 March 2018.

13. 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 Tribunal finds that the applicant satisfies the requirements of cl.485.223.

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

14. 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).

15. It is not disputed that at the time of the delegate’s decision, the applicant had not received a skills assessment from ACS. However, he has now provided a positive assessment from TRA issued to him on 12 September 2018 for his nominated skilled occupation of Motor Mechanic (General) (ANZSCO code 321211), which is not expressed to have any expiry date. The Tribunal has independently verified with TRA that this skills assessment is genuine and valid.

16. Accordingly, the Tribunal is satisfied that the applicant’s skills have been assessed during the last 3 years by his relevant assessing authority as suitable for his nominated skilled occupation, and that the period of validity of the assessment has not ended. The Tribunal finds that the applicant therefore meets cl.485.224(1) and (1A).

    How and where was the qualification obtained?

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. 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, as the TRA skills assessment of 12 September 2018 is based (at least in part) on a Certificate III in Light Vehicle Mechanical Technology, completed at Baxter Institute between 12 September 2014 and 4 December 2015, a Certificate IV in Automotive Mechanical Diagnosis from the same institution between 2 February 2016 and 24 August 2016 and a Diploma of Automotive Management completed at Brighton Institute of Technology between 15 February 2017 and 9 February 2018. The Tribunal has reviewed the Department’s file and electronic records and is satisfied that the applicant completed these courses while he held a visa authorising him to study in Australia. The Tribunal is further satisfied that the applicant’s Australian courses are registered courses, according to the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website. As the qualification was obtained as a result of studying several registered courses, the applicant satisfies the requirements of cl.485.224(2).

19. It follows that the applicant meets the requirements of cl.485.224 as a whole.

20. 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

21. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas 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.

    Alison Mercer
    Member