MARIANI (Migration)

[2018] AATA 1812

MARIANI (Migration) [2018] AATA 1812 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SELVY MARIANI

CASE NUMBER:  1806457

DIBP REFERENCE(S):  BCC2017/4339703

MEMBER:R. Skaros

DATE:30 April 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(1) of Schedule 2 to the Regulations.

Statement made on 30 April 2018 at 12:36pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Skill for the nominated occupation – Skills assessment – Nominated occupation – Childcare Centre Manager – TRA Provisional Skills Assessment Application Result – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 8 March 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 18 November 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.

3. The delegate refused the visa because the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because the applicant did not provide evidence demonstrating that her nominated skilled occupation has been assessed, during the last 3 years, as suitable by the relevant assessing authority.

4. On review, the applicant provided to the Tribunal a copy of her successful skills assessment issued by Trades Recognition Australia (TRA) on 28 March 2018.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the applicant meets the requirements of cl.485.224(1).

8. 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).

9. When applying for the visa the applicant indicated that her nominated occupation is Childcare Centre Manager 134111 and that she had applied for a skills assessment from the relevant assessing authority (TRA) on 10 November 2017.

10. On 11 December 2017 the Department wrote to the applicant requesting her to provide various documents, including evidence that her skills have been assessed by the relevant assessing authority as suitable for her nominated skilled occupation. The applicant was required to provide the information within 28 days but had not done so. On 29 January 2018 a further letter was sent to the applicant requesting her to provide evidence of the outcome of her skills assessment or an explanation detailing the reasons for the delay. By the time of the delegate’s decision, the applicant had not responded to the Department and consequently the visa application was refused.

11. The applicant nominated the occupation of Childcare Centre Manager 134111 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

12. The applicant has now provided a TRA Provisional Skills Assessment Application Result, dated 28 March 2018, which states that the applicant has been assessed as suitable for the occupation Childcare Centre Manager 134111. No validity period is specified in the letter, cl.485.224(1A) therefore does not apply .

13. Given the above, the Tribunal finds that during the last 3 years the applicant’s skills for the nominated skilled occupation of Childcare Centre Manager 134111 have been assessed by a relevant assessing authority as suitable for that occupation. Therefore the requirements of cl.485.224(1) are met.

14. 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.

    R. Skaros
    Member