Park (Migration)

[2021] AATA 1582

Park (Migration) [2021] AATA 1582 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Changu Park

CASE NUMBER:  2000524

HOME AFFAIRS REFERENCE(S):          BCC2019/5085512

MEMBER:Wan Shum

DATE:20 May 2021

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 485.223 of Schedule 2 to the Regulations.

Statement made on 20 May 2021 at 9:04am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – skills assessment – evidence provided to tribunal that application was made to relevant assessing authority shortly before visa application made – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.15I, 2.26B, Schedule 2, cl 485.223

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 Home Affairs on 6 January 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 October 2019. 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 (Cth) (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. A decision was made to refuse the visa because the delegate considered that the applicant did not apply for the required skills assessment with the appropriate authority prior to lodgement their visa application. The delegate found that the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations.

4. The applicant was represented in relation to the review by a registered migration agent.

5. The Tribunal invited the applicant to a hearing but upon receipt of information and supporting evidence that the application for the skills assessment was made prior to lodgement of the visa application, the Tribunal cancelled the hearing 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.

   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 criteria concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether clause 485.223 is met. This criterion 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’.

7. ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument IMMI 19/051.

8. On the visa application form, the applicant nominated the occupation of Chef which is a specified skilled occupation as it is listed on the applicable instrument for this subclass. For that occupation, the relevant assessing authority is Trades Recognitions Australia (TRA). The applicant provided the reference/receipt number of TRA19/999339473 and entered 10 October 2019 as the date of assessment. This is the same date he lodged the visa application.

9. In the decision record, reference is made to the receipt of a TRA skills assessment application form. The date written on the forms is 23 October 2019.

10. However, following an invitation to the applicant to attend a hearing, the representative forwarded evidence that the application for a skills assessment was made to TRA on 10 October 2019 shortly before the visa application was lodged. The email notification from TRA relevantly states “You have successfully made a payment for your Provisional Skills Assessment” and includes the applicant’s name and date of birth in the details section. The email was sent on 10 October 2019 at 9:47pm. The automatically generated email from the Department confirming receipt of his Subclass 485 application indicates that it was sent later that day at 10:17pm. The Tribunal was also provided with a copy of the applicant’s bank account statement which reflects the payments made to TRA and the Department for the respective application fees. The statement reflects that the transactions occurred on 14 October 2019, but the effective date listed in the descriptions for each were 10 October 2019. It further notes in respect of the TRA Provisional Skills Assessment summary page that the summary page and application documents are to be forwarded to TRA within 14 days of the receipt. The receipt number matches that on the email notification from TRA.

11. Having regard to the details provided on the application form and the subsequent evidence submitted on review, the Tribunal finds that the application when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority. Therefore, the applicant satisfies the requirements of cl 485.223.

12. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.223 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 485.223 of Schedule 2 to the Regulations.

    Wan Shum
    Member