Mendes Fermino De Brito (Migration)

[2019] AATA 2794

Mendes Fermino De Brito (Migration) [2019] AATA 2794 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Caio Augusto Mendes Fermino De Brito
Giovanna De Camargo Mesquita

CASE NUMBER:  1837101

HOME AFFAIRS REFERENCE:                BCC2018/3958135

MEMBER:Lilly Mojsin

DATE:12 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.224 of Schedule 2 to the Regulations

Statement made on 12 June 2019 at 3:34pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – Carpenter – accompanied by evidence of relevant application – positive skills assessment by TRA – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 485.223, 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 7 December 2018 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant [applicant] applied for the visa on 27 June 2018. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this review, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.224.

3. The delegate refused to grant 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 an assessment of his skills for the nominated skilled occupation by a relevant assessing authority.

4. In reaching its decision the Tribunal did not find it necessary to invite the applicant to a hearing, as it was able to decide the review in the applicant's favour on the basis of the material before it: s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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'.

6. '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 18/051.

7. On the evidence before the Tribunal, the applicant nominated the occupation of Carpenter – 331212, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Trades Recognition Australia [TRA].

8. The delegate stated in the decision that the applicant provided a receipt dated 25 June 2018, that confirmed he had applied for a skills assessment. This is prior to the visa application date of 27 June 2018.

9. 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 applicant satisfies the requirements of cl.485.223.

10. 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).

11. PRISMS records indicate that the applicant obtained an Australian qualification (Certificate III in Carpentry) on 30 June 2018 when the applicant was the holder of a student visa.

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

13. The applicant, on 15 May 2019 provided a positive skills assessment by TRA, for the nominated occupation of Carpenter – 331212, completed on 15 May 2019.

14. Therefore the requirements of cl.485.224(1) are met.

15. 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).

16. On the evidence before the Tribunal, the applicant's skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa. The applicant  completed a Certificate III at TAFE NSW. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

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

18. On 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

19. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·Cl.485.224 of Schedule 2 to the Regulations

    Lilly Mojsin
    Member