Pahrizal (Migration)

[2018] AATA 1999

Pahrizal (Migration) [2018] AATA 1999 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sry Wisdya Pahrizal

CASE NUMBER:  1809870

DIBP REFERENCE(S):  BCC2017/4694793

MEMBER:Amanda Mendes Da Costa

DATE:24 May 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 24 May 2018 at 9:38am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Nominated occupation – Chef – Skills assessment – Trades Recognition Australia – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, 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 6 April 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 9 December 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 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had provided the required skills assessment by the appropriate testing authority.

4. The applicant seeks review of the primary decision and for that purpose has provided a copy of the delegate’s decision to the Tribunal.

5. After considering the contents of both the Department’s and Tribunal’s files, the Tribunal is satisfied that it is appropriate to make a decision in the matter without giving the applicant an opportunity to appear at a hearing to give oral evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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’.

9. ‘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 18/007.

10. On the evidence before the Tribunal, the applicant nominated the occupations of Chef ANZCO Code 351311 and Cook ANZCO Code 351411 which are specified skilled occupations. For those occupations, the relevant assessing authority specified is Trades Recognition Australia.

11. When she lodged the visa application, the applicant declared on her form that she had applied for a skills assessment from Trades Recognition Australia and provided a reference number 99656004 for the application.

12. 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.

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

13. 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).

14. The Tribunal notes that the applicant has provided it with a skills assessment for her nominated occupations of Chef ANZCO Code 351311 and Cook ANZCO Code 351411.  This assessment is dated 27 April 2018 and was provided by Trades Recognition Australia, the applicant’s relevant assessing authority.

15. The Tribunal is satisfied that the applicant has been assessed during the past three years by a relevant assessing authority as suitable for the nominated skilled occupations.

16. The Tribunal notes that the skills assessment provided to it by the applicant is not expressed to be valid for a particular period.  Therefore the Tribunal finds cl. 485.224(1A) is met.

17. Therefore the requirements of cl.485.224 are met.

18. 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

19. 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.

    Amanda Mendes Da Costa
    Member