KASHIMURA (Migration)

[2018] AATA 1810

KASHIMURA (Migration) [2018] AATA 1810 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hitoko KASHIMURA

CASE NUMBER:  1804322

DIBP REFERENCE(S):  BCC2017/3017265

MEMBER:Wan Shum

DATE:27 April 2018

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 of Schedule 2 to the Regulations.

Statement made on 27 April 2018 at 2:47pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Skills assessment – Nominated occupation – Childcare Centre Manager – TRA Provisional Skills Assessment – 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 30 January 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 22 August 2017. 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).

3. The delegate refused the visa because the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because she did not provide a suitable skills assessment.

4. The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent.

5. On 6 April 2018, the Tribunal invited the applicant to attend a hearing. In response, the Tribunal received a copy of an assessment from TRA advising that the applicant’s skills were suitable for the nominated occupation. The Tribunal also received a request to postpone the hearing as the representative had a prior engagement on the same day. However, as the applicant has now provided a suitable skills assessment from the relevant assessing authority, it is not necessary to proceed to a hearing.

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 applicant nominated the occupation of Childcare Centre Manager. The issue in the present case is whether the applicant has been assessed as suitable for that occupation.

8. 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).

9. The applicant did not provide a skills assessment to the department prior to the decision of the delegate. An assessment by TRA dated 23 February 2018 was provided to the Tribunal. The Tribunal has sought verification from TRA who have confirmed that the applicant holds a valid successful Provisional Skills Assessment in the occupation of Child Care Centre Manager - 134111. TRA also confirmed that her assessment was based on her qualification and her vocational placement. There was no particular period of validity set out in the assessment.

10. Therefore the requirements of cl.485.224(1) and (1A) are met.

11. 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).

12. The applicant completed a Diploma of Early Childhood Education and Care in 2017. This course is provided by SELC Australia Pty Ltd, which is registered to provide the course to overseas students. 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 qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

13. It follows that the applicant meets the requirements of cl.485.224.

14. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.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

15. 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 of Schedule 2 to the Regulations.

    Wan Shum
    Member