Kim (Migration)

[2019] AATA 1429

Kim (Migration) [2019] AATA 1429 (16 January 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yangho Kim

CASE NUMBER:  1825438

DIBP REFERENCE(S):  BCC2018/3955016

MEMBER:Susan Trotter

DATE:16 January 2019

PLACE OF DECISION:  Brisbane

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 16 January 2019 at 5:51pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Chef – evidence of successful skills assessment provided – skills assessed within last three years by relevant assessing authority – Trades Recognition Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 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, Citizenship and Multicultural Affairs (the Minister) on 16 August 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 is a 32 year old citizen of South Korea. He first arrived in Australia on 2 October 2011 as the holder of a Subclass 417 Working Holiday visa and has undertaken various study in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 27 June 2018.

3. 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).

4. The delegate refused the visa on the basis that the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because he did not provide evidence of the required skills assessment by the appropriate authority to the Department of Home Affairs (the Department).

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 31 August 2018.

6. The applicant was represented in relation to the review by his registered migration agent.

7. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear at a hearing before the Tribunal.

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

   ISSUES

9. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which criteria include cl.485.224 of Schedule 2 to the Regulations.

10. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last three 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).

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 qualifications must have been obtained as a result of studying a registered course or courses (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. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Has the applicant been assessed as suitable for the nominated occupation? And,

    (b)  If the assessment is expressed to be valid for a particular period, has that period not ended? And,

    (c)  If the applicant’s skills were assessed on the basis of a qualification(s) obtained in Australia while the applicant held a student visa, was the qualification(s) obtained as a result of studying a registered course or courses?

    CONSIDERATION

    Issue 1 - Has the applicant been assessed as suitable for the nominated occupation?

13. In the visa application, the applicant nominated the occupation of Chef (ANZSCO[1] 351311). For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

    [1] Australian and New Zealand Standard Classification of Occupations

14. As at the date of the delegate’s decision, 16 August 2018, the applicant had not provided a copy of a skills assessment, assessing the skills of the applicant as suitable for the occupation of Chef, to the Department.

15. The applicant has subsequently provided a skills assessment dated 6 September 2018 from TRA stating, among other things, that the applicant’s skills have been assessed as ‘SUCCESSFUL for the occupation of Chef – 351311’.

16. The applicant’s skills have therefore been assessed within the last three years by a relevant assessing authority as suitable for the nominated skilled occupation.

17. The requirements of cl.485.224(1) are therefore now met.

    Issue 2 - If the assessment is expressed to be valid for a particular period, has that period not ended?

18. The skills assessment by TRA dated 6 September 2018 is not expressed to be valid for a particular period only.

19. Clause 485.224(1A) is therefore not applicable.

    Issue 3 – If the applicant’s skills were assessed on the basis of a qualification(s) obtained in Australia while the applicant held a student visa, was the qualification(s) obtained as a result of studying a registered course or courses?

20. The skills assessment by Trades Recognition Australia dated 6 September 2018 has not, on its face, been assessed on the basis of a qualification obtained in Australia. However, TRA’s website[2] states that to be eligible for an assessment, among other things, an applicant must have completed a qualification relevant to an occupation assessed by TRA and awarded by a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) training organisation and achieved as a result of study in Australia.

    [2] Accessed 14 January 2019

21. Information submitted by the applicant to the Department, as well as information on the Provider Registration and International Student Management System (PRISMS) database maintained online by the Department of Education and Training, and information from the educational institutions at which the applicant studied, confirms that the applicant completed:

    (a)  a at the Queensland Institute of Commerce and Technology Pty Ltd on 1 May 2017 (with study dates from 9 January 2017 to 1 May 2017); and

    (b)  a at the New York College in 2018 (with study dates from 15 May 2017 to 8 January 2018).

22. The Department’s records show that the applicant held:

    (a)  a Subclass 572 Vocational Education and Training Sector visa from 6 August 2015 to 24 November 2017; and

    (b)  Subclass 500 Student visas from 24 November 2017 to 8 February 2018 and from 15 February 2018 to 16 December 2018,

    and therefore the qualifications were obtained while the applicant held student visas.

23. Having had regard to the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, the Tribunal is satisfied that the above-mentioned courses were registered courses.

24. The Tribunal is therefore satisfied that the applicant’s skills were assessed on the basis of qualifications obtained in Australia while the applicant held student visas and that the qualifications were obtained as a result of studying registered courses.

25. The requirements of cl.485.224(2) are therefore met.

26. Conclusion

27. As the requirements of cl.485.224(1) and cl.485.224(2) are satisfied, the applicant meets cl.485.224 as a whole.

28. 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

29. 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.

    Susan Trotter
    Member