Jung (Migration)

[2018] AATA 4396

Jung (Migration) [2018] AATA 4396 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raesung Jung
Mrs TAEHEE KIM

CASE NUMBER:  1814717

DIBP REFERENCE(S):  BCC2018/998459

MEMBER:Bridget Cullen

DATE:17 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

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

Statement made on 17 September 2018 at 7:08pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment – skilled occupation – Motor Mechanic (General) – successful TRA Skills Assessment Application results – second named applicant – member of the same family unit – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B 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 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 1 March 2018. The delegate refused to grant the visas on 16 May 2018.

2. The delegate made the decision on the basis that evidence of a skills assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 12 August 2018 the Tribunal received a copy of a successful TRA Provisional Skills Assessment Application Result for the occupation of Motor Mechanic (General) – 321211. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

4. The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include 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.

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

6. Clause 485.224(1) of Schedule 2 to the Regulations 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. Further, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A) of the Regulations.

7. 'Skilled occupation' has the meaning given by r.1.15I of the Regulations: r.1.03 of the Regulations. Essentially, an occupation is a skilled occupation if it is specified as such by the Minister in an instrument in writing. '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 of the Regulations. Here, the current instrument made under r.2.26B of the Regulations is Legislative Instrument IMMI 18/007 of 15 January 2018.

8. The applicant nominated the occupation of Motor Mechanic (General) ANZSCO 321211 in his Subclass 485 visa application. As noted above, at the time of lodgment of his Subclass 485 visa application on 1 March 2018, the applicant provided evidence of having applied for an assessment of his skills for his nominated occupation. In this regard, he provided the Department with details of a receipt from TRA and a copy of an email sent by TRA to his migration agent on 24 January 2018 confirming that his Provisional Skills Assessment application documents had been received by TRA.

9. In addition to providing evidence of lodgment of a skill assessment with TRA, the applicant also provided evidence of his completing at the following qualifications at TAFE Queensland: a Certificate III in Light Vehicle Mechanical Technology completed on 13 September 2017; and a Certificate IV in Automotive Performance Enhancement completed on 9 November 2017. However, on the basis that a favourable skill assessment was not provided to the Department, the delegate refused to grant the visa.

10. The applicant has provided the Tribunal with a TRA skills assessment dated 9 August 2018 which confirms that his Provisional Skills Assessment application has been successful for the nominated occupation of Motor Mechanic (General) - 321211. The assessment advises that it can be used to apply for a Subclass 485 visa.

11. The Tribunal has considered the skills assessment provided and finds that the applicant has now provided evidence that his skills for the nominated skilled occupation of Motor Mechanic (General) - 321211 have been assessed during the last 3 years by a relevant assessing authority – in this case, TRA - as suitable for that occupation. Accordingly, he meets cl.485.224(1) of Schedule 2 to the Regulations.

12. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.224(1) 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.

13. The second named applicant, Mrs Taehee Kim, applied on the basis of being a member of the family unit of the first named applicant. Accordingly, Mrs Kim’s application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    DECISION

14. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

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

    Bridget Cullen
    Member