Ramdhonee (Migration)

[2024] AATA 231

Ramdhonee (Migration) [2024] AATA 231 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baboo Mannish Rye Ramdhonee

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  2116917

HOME AFFAIRS REFERENCE(S):          BCC2021/109618

MEMBER:Peter Katsambanis

DATE:31 January 2024

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 31 January 2024 at 1:38pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – skills assessment not for nominated occupation – nominated occupation motor mechanic and skills assessment automotive electrician – previous agent nominated incorrect occupation – applicant gained additional qualification as motor mechanic while holding bridging visa – later assessment as motor mechanic based on that course provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223(1), 485.224(1), (1A)

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 10 November 2021 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 12 January 2021. Visa Class VC contains Subclass 485. 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. The delegate refused the visa because the applicant did not satisfy cl 485.224(1) of Schedule 2 to the Regulations because the delegate found that the applicant’s skills assessment was not for their nominated skilled occupation of Motor Mechanic (General) 321211.

4. The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The applicant’s partner, Thisha Sanauth, attended the hearing as an observer.

5. The applicant was represented in relation to the review. The representative attended the hearing by telephone link.  

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 cls 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. Neither of these requirements apply if the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 12 January 2021. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224.

   Had the applicant applied for a relevant skills assessment?

8. Clause 485.223(1) 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 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 LIN19/051.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Motor Mechanic (General) - 321211 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

11. At the time of lodging his application with the Department, the applicant provided a receipt from TRA dated 12 December 2020 as evidence that he had applied for a skills assessment for the occupation of Motor Mechanic (General) - 321211.

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(1).

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

15. After he lodged his application with the Department and prior to the delegate making a decision in this matter, the applicant provided the Department with a Form 1023 Notification of Incorrect Answer(s) advising that the nominated occupation of Motor Mechanic (General) - 321211 was incorrect and that he would prefer to be assessed under the nominated occupation of Automotive Electrician - 321111. However, as noted in the delegate’s decision record, there is no legislative mechanism or departmental policy that allows an applicant to change their nominated occupation after applying for this type of visa.

16. The applicant also provided the Department with a skills assessment report from TRA dated 18 March 2021 which stated that the applicant had been assessed as successful for the occupation of Automotive Electrician - 321111.

17. The delegate refused to grant the applicant a visa on 10 November 2021 as the applicant did not have a skills assessment for his nominated skilled occupation of Motor Mechanic (General) 321211 pursuant to cl 485.224.

18. However, since the applicant lodged his application for review, he has provided the Tribunal with a letter dated 14 September 2023 from TRA stating that he has been assessed as suitable for the nominated occupation of Motor Mechanic (General) – 321211. The letter states that the assessment is based on the applicant’s Certificate III in Light Vehicle Mechanical Technology issued by Central Australia College. The letter also states that the assessment is valid for 3 years from the date of issue. This evidence was not available to the Department at the time of the delegate’s decision.

19. In a submission dated 30 January 2024, the applicant stated that as he had now been assessed by TRA as suitable for his original nominated occupation, he believed that he met the criteria in cl 485.224.

20. At the hearing, the applicant explained that he had relied on his previous representative to lodge a valid visa application on his behalf. Although the applicant’s qualifications at the time were clearly for the position of Automotive Electrician – 321111, the previous agent had inexplicably used the nominated skilled occupation of Motor Mechanic (General) – 321211 on the application form, which caused problems for the applicant.

21. However, the applicant explained that he had used the time since the delegate’s decision wisely. He had completed a Certificate III in Light Vehicle Mechanical Technology and, based on this qualification, he had now managed to obtain a successful skills assessment deeming him suitable for his nominated skilled occupation being Motor Mechanic (General) – 321211. The applicant also stated that he was currently working as a motor mechanic for a company in Melbourne.  

22. Accordingly, on the evidence before it, the Tribunal is satisfied that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation of Motor Mechanic (General) – 321211 and the 3-year validity period for this assessment has not ended.

23. Therefore, the requirements of cl 485.224(1) and (1A) are met.

    How and where was the qualification obtained?

24. 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)).

25. The applicant’s skills were assessed by TRA based on his Certificate III in Light Vehicle Mechanical Technology that he obtained from Central Australia College. Course completion documents for this course that were provided by the applicant to the Tribunal indicate that he undertook this course in Australia from 12 September 2022 to 26 March 2023. As the applicant confirmed at the hearing, and as verified by Department movement records, during this period of study he was in Australia on a bridging visa, not a student visa. Accordingly, in these circumstances, cl 485.224(2) does not apply.

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

27. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.223 and cl 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

28. 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.

    Peter Katsambanis
    Member