Rakesh (Migration)

[2018] AATA 5506

Rakesh (Migration) [2018] AATA 5506 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Rakesh

CASE NUMBER:  1822322

DIBP REFERENCE(S):  BCC2018/1244861

MEMBER:Warren Stooke AM

DATE:13 November 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(2) of Schedule 2 to the Regulations.

Statement made on 13 November 2018 at 12:44pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa  – Subclass 485 visa –  Graduate Work stream –  skills assessment – relevant assessing authority – skilled occupation – suitable to nominated occupation – qualifications obtained in Australia –  decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth)  r 1.15I, 1.03, 2.26B,  cls 485.223,  485.224(1), 485.224(2)

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 24 July 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 15 March 2018. 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 had not provided evidence that his skills have been assessed by a relevant assessing authority as suitable for his nominated skilled occupation, Chef – ANZSCO Code: 351311.

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

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.

   Had the applicant applied for a relevant skills assessment?

7. 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’.

8. ‘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).

9. On the evidence before the Tribunal, the applicant nominated the occupation of Chef – ANZSCO Code: 351311, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trade Recognition Australia (TRA).

10. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant did not satisfy the requirements of cl.485.223 at the time of the delegate’s decision.

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

11. 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).

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. On 10 July 2018, Trades Recognition Australia, formerly notified the applicant that a TRA Provisional Skills Assessment Result of ‘successful’ had been obtained by the applicant for the occupation of Chef – 351311 and Cook – 351411.[TRA Ref: TRA18/999319579 contained in Tribunal File – Folio 26]

14. The correspondence from TRA to the applicant regarding the Provisional Skills Assessment stated:

    “Your Provisional Skills Assessment application has been assessed as SUCCESSFUL for the occupation of Chef —351311 and Cook -351411.

    This letter is not a qualification nor does it represent formal accreditation of your skills and experience. It can only be used to apply to the Department of Home Affairs (Home Affairs) for a Temporary Graduate visa (subclass 485) where the nominated occupation appears on the Medium and Long-term Strategic Skills List (MLTSSL).

    Once you have lodged your application for a 485 visa, you can apply for Step 2 of the Job Ready Program - Job Ready Employment (JRE). You can also apply for JRE while on a Bridging Visa A, waiting for your 485 visa. Trades Recognition Australia (TRA) may consider other visas with full work rights for J RE on a case by case basis.

    To be eligible for JRE, you must submit the details of your employment to TRA through the online portal at the commencement of your employment. The JRE Summary Page and Employment Registration Form, which are printed from the online portal, must then be posted to TRA within 30 working days of the online submission date to register your employment.

    Employment completed before registration for JRE, may not be eligible for the 12 months employment requirement.

    To work in some licenced occupations in Australia, you may be subject to further testing, assessment or State Government licensing or registration requirements. For further information, please contact the relevant State or Territory licensing organisation in your area.”

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

    How and where was the qualification obtained?

16. 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).

17. 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.

18. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

    Conclusion on Suitable Skills Assessment

19. It follows that the applicant meets the requirements of cl.485.224(2).

20. 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

21. 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(2) of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member