Leite Medina (Migration)

[2018] AATA 2255

Leite Medina (Migration) [2018] AATA 2255 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Marcela Leite Medina

CASE NUMBER:  1803302

DIBP REFERENCE(S):  BCC2017/3640842

MEMBER:Wan Shum

DATE:17 May 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 17 May 2018 at 9:40am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Chef – Requirement to obtain suitable skills assessment – Suitable skills assessment not provided to the Department – Suitable skills assessment provided to the Tribunal – Decision remitted with direction

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, 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 19 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 Subclass 485 applied for the visa on 5 October 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. She appeared before the Tribunal on 2 May 2018 to give evidence and present arguments.  

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 a requirement that the applicant’s skills have been assessed as suitable for their nominated occupation: clause 485.224(1). 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. The applicant nominated the occupation of Chef which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

8. The applicant has now submitted to the Tribunal a successful Provisional Skills Assessment in the occupation of Chef – 351311 issued by TRA on 1 May 2018. The Tribunal contacted TRA to verify the outcome, which was confirmed. TRA further confirmed that the assessment was based on both the applicant’s qualification and work experience. There is no validity period specified. Therefore the requirements of cl.485.224(1) are now met.

9. As the skills assessment was based on 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).

10. The applicant’s qualification was issued by Kenvale College which, according to PRISMS records, is registered to provide the course to overseas students. The information before the Tribunal is that the qualification was 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).

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

12. 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

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.

    Wan Shum
    Member