Lee (Migration)

[2018] AATA 327

Lee (Migration) [2018] AATA 327 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yvonne Kah Hun Lee

CASE NUMBER:  1726633

DIBP REFERENCE(S):  BCC2017/2134522

MEMBER:Alison Mercer

DATE:19 January 2018

PLACE OF DECISION:  Melbourne

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.485.223 of Schedule 2 to the Regulations; and

·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 19 January 2018 at 1:46pm

CATCHWORDS
Migration – Skilled (Provisional)(Class VC) visa – Subclass 485 – Evidence of skills assessment not previously available – Skills positively assessed by TRA

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.223, 485.224, 485.224(1), 485.224(1A). 485.224(2), rr 1.03, 1.15I, 2.26B, IMMI 16/060

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 11 October 2017 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 16 June 2017. 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. The applicant applied in the Graduate Work stream.

3. The delegate refused the visa because the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations, which required her to have a valid skills assessment for her nominated occupation. The delegate noted that the applicant had stated in her visa application that she had applied for a skills assessment to the relevant assessing authority, Trades Recognition Australia (TRA), for her nominated occupation of Chef, before making her visa application. However, she did not provide a skills assessment from TRA when requested to do so by the delegate on 23 June 2017.

4.    The Tribunal received a review application from the applicant on 31 October 2017. It was accompanied by a copy of the delegate’s decision.

5.    On 13 November 2017, the applicant provided a copy of a skills assessment issued to her on 6 November 2017 by TRA stating that her skills had been assessed as suitable for the occupations of Cook (351411) and Chef (351311), for the purposes of making a subclass 485 visa application.

6.    On 21 November 2017, the Tribunal received confirmation from TRA that the applicant’s skills assessment was genuine and valid. 

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

8.    In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

Had the applicant applied for a relevant skills assessment?

1. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

2. ‘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 16/060.

3. On the evidence before the Tribunal, the applicant nominated the occupation of Chef (ANZSCO code 351311) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

4. From the Department’s file, the Tribunal is satisfied that the applicant stated in her online application that she had applied for a skills assessment to TRA, and that she provided to the Department an acknowledgement letter from TRA for this application.

5. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the Tribunal finds that the applicant satisfies the requirements of cl.485.223.

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

1. Clause 485.224(1) requires that, at the time of decision, 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).

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

3. The Tribunal is satisfied that the applicant’s skills have been positively assessed by the relevant assessing authority, TRA, as suitable for her nominated occupation of Chef in a skills assessment issued to her on 6 November 2017.  The Tribunal is further satisfied that this was issued in the last 3 years, and that there is no validity period expressed in the skills assessment.  The Tribunal therefore find that the applicant meets cl.485.224(1) and (1A).

How and where was the qualification obtained?

1. 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).

2. Although the TRA skills assessment of 6 November 2017 does not specify on what qualifications and/or experience it was based, the applicant’s visa application and supporting documents indicate that it was based on her Australian qualifications; namely, an Australian Qualifications Framework (AQF) Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management, all of which were undertaken by the applicant at Kingston International College in Perth, Western Australia, between 13 April 2015 and 21 April 2017.

3. The applicant’s Electronic Confirmation of Enrolment (ECoE) documents, provided to the Department with her visa application, indicate that both this education provider and these courses are registered for these purposes on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

4. The Department’s movement records indicate that the applicant held visa(s) authorising her to undertake study in Australia for the duration of her courses.

5. Accordingly, the Tribunal is satisfied that the applicant’s skills were assessed on the basis of qualifications obtained in Australia while the applicant held a student visa, and that these courses were registered.  The Tribunal finds that the applicant satisfies the requirements of cl.485.224(2).

6. It follows that the applicant meets the requirements of cl.485.224 as a whole.

7. 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

1. 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.485.223 of Schedule 2 to the Regulations; and

   ·cl.485.224 of Schedule 2 to the Regulations.

Alison Mercer
Member