Rivera (Migration)

[2018] AATA 3527

Rivera (Migration) [2018] AATA 3527 (26 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maria Rivera
Miss Bettina Theresa Rivera

CASE NUMBER:  1707472

DIBP REFERENCE(S):  BCC2016/4334803

MEMBER:Karen Synon

DATE:26 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 26 July 2018 at 11:21am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Evidence of assessment of skills – Applied for assessment not with relevant assessing body – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15I, 2.26B, Schedule 2 cls 485.223, 485.311

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 23 March 2017 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 19 December 2016. 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 primary review applicant (‘the applicant’) did not satisfy cl.485.223 of Schedule 2 to the Regulations because when her application was made, it was not accompanied by evidence that she had applied for an assessment of her skills for the nominated skilled occupation by a relevant assessing authority.

4. The applicant appeared before the Tribunal on 26 July 2018 to give evidence and present arguments.  The hearing was conducted by telephone with the applicant in Tasmania.  The second named applicant was not present and did not give any evidence.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 of Schedule 2 to the Regulations. This criterion is concerned with the applicant’s skills in relation to their nominated skilled occupation.

   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). The relevant instrument is Legislative Instrument IMMI 16/059.

9. On the evidence before the Tribunal, the applicant nominated the occupation of ‘Chef’ which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

10. The primary decision records that in her visa application the applicant declared she had applied for a skills assessment for her nominated skilled occupation of Chef with TAFE Queensland on 21 November 2016.  On 9 February 2017 the applicant was requested to provide a copy of her skills assessment.  On 14 March 2017 the applicant provided a receipt issued by VETASSESS dated 2 March 2017 for an online assessment of her skilled occupation.  The delegate concluded that a skills assessment from TAFE Queensland cannot be considered to meet cl.485.223 as TAFE Queensland is not the relevant assessing body to assess the skilled occupation of Chef.  The visa was consequently refused.

11. In a short submission to the Tribunal the applicant noted that she provided a copy of her Certificate of Employment and her recent performance review from her employer, Stamford Plaza Brisbane as additional evidence to prove her skills.  She also submitted payslips from her previous and present employers as proof that she has been continuously employed in the hospitality industry as a Chef.  The documents referred to by the applicant were all provided to the Tribunal.

12. During the hearing the Tribunal explained that the issue before it is whether she had provided evidence, with her visa application that she had applied for a skills assessment from the relevant assessing body which, for the skilled occupation of Chef, is Trades Recognition Australia.  The Tribunal noted that the documentation she had provided demonstrating her employment as a Chef including: payslips; a performance review; and a Certificate of Employment, are not sufficient to satisfy the requirements of cl.485.223 because this is a time of application requirement.

13. Invited to make any oral submissions the applicant said she made an honest mistake because she thought TAFE, where she did her studies and got her qualifications, was the assessing body.  She understand that the Tribunal cannot make a decision in her favour because after she received the primary decision she consulted an agent who told her he did not think she could win the case but she has now applied under regional Australia.

14. 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 does not satisfy the requirements of cl.485.223.

15. As the applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, the secondary applicant also does not satisfy the secondary criteria for the grant of the visa, in particular cl.485.311 which requires that an applicant must be a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

16. On the basis of the above findings, the Tribunal finds that the applicants do not satisfy the criteria for the grant of a Subclass 485 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Karen Synon
    Member