Santos (Migration)

[2017] AATA 1377

Santos (Migration) [2017] AATA 1377 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Leonora Marie Alday Santos
Mr Mark Jayson Santos

CASE NUMBER:  1706707

DIBP REFERENCE(S):  BCC2016/3767186

MEMBER:Wan Shum

DATE:8 August 2017

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.485.224 of Schedule 2 to the Regulations.

Statement made on 08 August 2017 at 4:05pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Skills assessment – Child Care Centre Manager – Valid successful Provisional Skills Assessment – Qualification obtained in Australia

LEGISLATION

Education Services for Overseas Students Act 2000, s 9

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.224, r 1.15I, r 1.03, r.2.26B, IMMI 16/059

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 10 March 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 485 visas on 10 November 2016. 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) had not provided evidence that that her skills had been assessed as suitable for her nominated occupation.

4. The applicants have sought review of that decision and were represented in relation to the review by a 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 of Schedule 2 to the Regulations. The delegate found that the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations which requires the applicant’s skills to be assessed as suitable for his or her nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

7. ‘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 (as amended by IMMI 17/040).

8. On the evidence before the Tribunal, the applicant nominated the occupation of Child Care Centre Manager which is an occupation specified by the Minister. For that occupation, the relevant assessing authority is TRA.

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

9. 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).

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

11. The applicant had applied for a skills assessment from TRA on 10 November 2016, the same day she lodged her application for the Subclass 485 visa, however this assessment was ultimately unsuccessful. On 2 June 2017, the applicant applied for another TRA Provisional Skills Assessment application. The applicant has now provided to the Tribunal a letter from TRA confirming that she has suitable skills for the occupation of Child Care Centre Manager. The Tribunal sought verification from TRA of the outcome of the assessment and was informed that the applicant holds a valid successful Provisional Skills Assessment for that occupation, and the outcome was finalised on 31 July 2017.

12. The Tribunal finds that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation. Therefore the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

13. 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).

14. TRA has informed the Tribunal that the applicant’s Diploma of Early Childhood Education and Care and work placement from SELC Career College was assessed during the assessment process. A copy of the applicant’s diploma qualification was provided to the Department indicating that the Diploma of Early Childhood Education and Care was issued by SELC Career College on 25 October 2016. The certificate includes the CRICOS Code of 081687D and the CRICOS Provider number 00051M. The course start date was 5 October 2015 and course end date was 16 September 2016. During this time, the applicant held a Subclass 572 student visa followed by a Subclass 500 student visa.

15. 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. The information before the Tribunal is that SELC Career College is registered under the ESOS Act, and the Tribunal finds that the qualification was obtained as a result of studying a registered course. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

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

17. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of 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

18. 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.485.224 of Schedule 2 to the Regulations.

    Wan Shum
    Member