Salnikov (Migration)

[2017] AATA 113

Salnikov (Migration) [2017] AATA 113 (13 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Evgeny Salnikov

CASE NUMBER:  1603701

DIBP REFERENCE(S):  BCC2015/2236889

MEMBER:Katie Malyon

DATE:13 January 2017

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.485.224 of Schedule 2 to the Regulations.

Statement made on 13 January 2017 at 6:37 pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Graduate Work stream – Subclass 485 – Skills assessment – Hearing not required – Motor Mechanic – Trade Recognition Australia – Skills assessed during last 3 years by relevant authority  

LEGISLATION

Migration Act 1958, s 65,

Migration Regulations 1994, Schedule 2, cl 485.223, cl 485.224, r 1.03, r 1.15I, r 2.26B

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 2 March 2016 to refuse to grant the applicant, Mr Evgeny Salnikov, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Salnikov applied for the visa on 5 August 2015. 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).  

3. The delegate refused the visa because refused the visa because Mr Salnikov did not satisfy cl.485.224 of Schedule 2 to the Regulations because he did not provide a favourable skill assessment at the time of the delegate’s decision.

4. The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Mr Salnikov 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 Mr Salnikov meets those requirements.

   Had the applicant applied for a relevant skills assessment?

6. 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’.

7. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations: r.1.03 of the Regulations. Essentially, an occupation is a skilled occupation if it is specified by the Minister in an instrument in writing. ‘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 of the Regulations. For applicants who applied for a Subclass 485 visa after 1 July 2015 but before 1 July 2016 the current instrument made under r.2.26B of the Regulations is Legislative Instrument IMMI 16/060 of 6 May 2016.

8. On the evidence before the Tribunal, Mr Salnikov the occupation of Motor Mechanic (General) ANZSCO 321211 which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is Trade Recognition Australia (TRA).

9. It is not in dispute that Mr Salnikov provided the Department at the time he lodged his Subclass 485 visa application with a receipt number from TRA confirming that he had applied for a skills assessment from that organisation in respect of his occupation. As the visa application, when made by Mr Salnikov on 5 August 2015, was accompanied by evidence of an application for a skills assessment of his nominated skilled occupation by a relevant assessing authority the Tribunal concurs with the delegate and finds that Mr Salnikov satisfies the requirements of cl.485.223 of Schedule 2 of the Regulations.

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

10. Clause 485.224(1) of Schedule 2 of the Regulations 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) of Schedule 2 of the Regulations.

11. On 16 December 2016, Mr Salnikov’s representative provided the Tribunal with a Provisional Skills Assessment Application Result dated 14 October 2016 issued by TRA confirming Mr Salnikov meets the requirements for the occupation of Motor Mechanic (General) ANZSCO 321211 (the Assessment) for the purposes of applying to the Department for a Subclass 485 visa.

12. Based on the evidence provided, the Tribunal finds that Mr Salnikov has been assessed during the last 3 years by TRA, the relevant assessing authority, for his nominated skilled occupation of Motor Mechanic (General) ANZSCO 321211.  The Assessment does not specify a validity period.

13. In light of these findings, the requirements of cl.485.224(1) of Schedule 2 of the Regulations are met and the requirements of cl.485.224(1A) of Schedule 2 of the Regulations are not applicable.

    How and where was the qualification obtained?

14. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a Student visa, there is an additional requirement that the qualification must have been obtained as a result of studying a registered course: cl.485.224(2) of Schedule 2 of the Regulations. ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under s.9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’: r.1.03 of the Regulations.

15. Based on evidence on the Department’s file, Mr Salnikov’s skills were assessed by TRA on the basis of the following courses completed by him at the Sunraysia Institute of TAFE in Mildura, Victoria:

    ·     Certificate III in Automotive Mechanical Technology Light Vehicle;

    ·     Certificate IV in Automotive Mechanical Overhauling; and,

    ·     Diploma in Automotive Technology.

16. These studies were undertaken between 29 January 2013 and 28 June 2015 when Mr Salnikov held a Student visa. Since his qualifications were obtained as a result of studying registered courses, Mr Salnikov satisfies the requirements of cl.485.224(2) of Schedule 2 of the Regulations.

17. On the basis of the above findings, the Tribunal finds that Mr Salnikov meets the requirements of cl.485.224 of Schedule 2 to the Regulations. Accordingly, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for grant of the visa.

    DECISION

18. 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.485.224 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member