Kim (Migration)

[2018] AATA 5788

Kim (Migration) [2018] AATA 5788 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yonghyun Kim

CASE NUMBER:  1831633

DIBP REFERENCE(S):  BCC2018/3035640

MEMBER:Bridget Cullen

DATE:27 November 2018

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 27 November 2018 at 2:01pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Motor Mechanic (General) – skills assessment – TRA Provisional Skills Assessment results – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 26 October 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 13 August 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 because at the time of the delegate’s decision, the applicant had not provided a skills assessment by a relevant assessing authority, stating that they were suitable for their nominated occupation.

4. 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 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.

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

6. 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).

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

8. The Applicant, on lodging their application on 19 October 2018, provided the Tribunal with a TRA Provisional Skills Assessment Application Result for the occupation of Motor Mechanic (General) – ANZSCO 321211, dated 18 October 2018. The assessment indicated a successful result.

   How and where was the qualification obtained?

9. 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)).

10. On the evidence before the Tribunal, the applicant’s skills were not assessed on the basis of a qualification obtained in Australia while the applicant held a student visa. Accordingly cl.485.224(2) is not applicable in this case.

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

    CONCLUSION

12. 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

13. 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.

    Bridget Cullen
    Member