Nasir (Migration)

[2018] AATA 545

Nasir (Migration) [2018] AATA 545 (5 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Usman Nasir

CASE NUMBER:  1702396

DIBP REFERENCE(S):  BCC2016/3168698

MEMBER:Antonio Dronjic

DATE:5 March 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.485.224(1) of Schedule 2 to the Regulations.

Statement made on 05 March 2018 at 2:15pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Nominated occupation – Chef – Suitable skills assessment – Satisfies the visa requirements

LEGISLATION

Migration Act 1958, s 65
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 9 February 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 19 September 2016. 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 has failed to provide evidence of the skill assessment outcome for his nominated occupation of a Chef.

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. 485.224 of Schedule 2 to the Regulations. This criterion is concerned with the applicant’s skills in relation to their nominated skilled occupation.

   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.

7. On 24 February 2018, the applicant has provided provisional skills assessment application results from TRA dated 10 April 2017 as evidence that his application for skills assessment for the nominated occupation of a Chef has been successful.

8. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it, so there was no need for the applicant to be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

9. The Tribunal finds that the applicant’s skills have been assessed as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore satisfies the requirements of cl.485.224(1).

   DECISION

10. 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.

    Antonio Dronjic
    Member