Kaur (Migration)

[2021] AATA 992

Kaur (Migration) [2021] AATA 992 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Baljinder Kaur

CASE NUMBER:  1920160

HOME AFFAIRS REFERENCE(S):          BCC2019/1038057

MEMBER:Roslyn Smidt

DATE:7 April 2021

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 7 April 2021 at 10:45 AM

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment by relevant assessing authority provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.15I, Schedule 2, cl 485.224(1)

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 Home Affairs on 5 July 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 2 March 2019. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.224 of Schedule 2 to the Regulations because she did not provide evidence that her skills had been assessed by a relevant assessing authority.

4. The Tribunal did not consider a hearing to be necessary in this case as it was able to find in favour of the applicant on the material before it. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets cl.485.224.

7. ‘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 18/051.

8. On the evidence before the Tribunal, the applicant nominated the occupation of Motor Mechanic (General) (ANSZCO 321211) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

9. 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).

10. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

11. In this case, the applicant gave evidence in her visa application that she had applied to TRA for an assessment of her skills, however, she did not provide the assessment to the Department. On 29 April 2019 the Department requested the applicant to provide evidence that her skills had been assessed as suitable for the nominated skilled occupation. The applicant did not respond to this request within the 28-day time frame provided by the Department and the delegate was not satisfied that she met the requirements of cl.485.224(1).

12. The applicant has provided the Tribunal with a copy of a TRA assessment (reference number TRA19/999331825) dated 11 July 2019. This states that the provisional skills assessment has been assessed as successful for the occupation of Motor Mechanic (General) (ANZSCO 321211). There is no indication that this is no longer valid.

13. On the basis of the evidence before it, the Tribunal finds that the requirements of cl.485.224(1) are met.

14. Given the findings above the Tribunal finds that the applicant meets the requirements 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.

    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(1) of Schedule 2 to the Regulations.