PARK (Migration)

[2019] AATA 3632

PARK (Migration) [2019] AATA 3632 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr YONGJUN PARK
Ms HYONAM PARK

CASE NUMBER:  1915080

DIBP REFERENCE(S):  BCC2019/447472

MEMBER:Jennifer Cripps Watts

DATE:5 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named 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 05 July 2019 at 10:33am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – successful TRA skills assessment result provided – Chef/Cook – skilled occupation – registered course – qualification obtained in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223, 485.224
Education Services for Overseas Students Act 2000

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 12 June 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 February 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 (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 visas because the first named applicant (the applicant) did not satisfy cl.485.224 of Schedule 2 to the Regulations because, when requested by the Department, the applicant did not provide evidence that their nominated skilled occupation had been assessed during the last 3 years by a relevant assessing authority as suitable for that occupation.

4. The applicants were represented in relation to the review by their registered migration agent Mr Peter Dong Chung, Migration Agent Registration Number 0854131.  According to the information in the online visa application of 12 February 2019, Mr Chung was also the migration agent of record at the time of application.

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

   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 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.

7. In the online application, dated 12 February 2019, the applicant responded ‘yes’ to the question:  ‘Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?’  The applicant indicated in the online visa application that the nominated occupation is Chef, the name of the assessing authority is Trades Recognition Australia (TRA), the date of the skills assessment was 10 February 2019 and also provided a reference/receipt number, TRA19/999328509.

8. However, when the Department requested the applicant provided the TRA skills assessment in mid-April 2019, and given 28 days to provide it, no response was received.  On 12 June 2019, it is noted in the delegate’s decision that they had still not received a response to the request for the TRA skills assessment, and the visa was refused because there was no evidence before the delegate that the applicant met cl.485.224, a mandatory requirement.

9. The applicant lodged a review application with the Tribunal on the same day the visa was refused, 12 June 2019.  The review application was accompanied by a TRA skills assessment dated 1 May 2019.  It appears that the date the TRA assessment was done, it was well within the 28 days given to the applicant to provide it.  No explanation was provided to the Tribunal as to why neither the applicant, nor their migration agent, Mr Chung, had provided the TRA assessment to the Department, particularly as it had been requested and it was available from around 1 May.  Nevertheless, the applicant has now provided the Tribunal with a positive skills assessment from TRA, the relevant assessing authority, for the occupation of Chef/Cook 351311/351411.

   Had the applicant applied for a relevant skills assessment?

10. 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’.

11. ‘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, which specifies TRA as the relevant assessing authority for the nominated occupation in this matter, Chef (ANZSCO 351311), a specified skilled occupation.

12. At the time of application, the applicant provided information in the online application indicating he had applied for a skills assessment from TRA and provided a receipt/reference number.

13. As the visa application, when made, was accompanied by evidence that the applicant had applied 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?

14. 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).

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

16. As already mentioned, at the time of this decision the Tribunal now  has evidence a positive TRA skills assessment for the nominated occupation, dated 1 May 2019.

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

    How and where was the qualification obtained?

18. 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).

19. 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.  For these reasons, the applicant satisfies the requirements of cl.485.224(2).

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

21. 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

22. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named 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

    Jennifer Cripps Watts
    Member