Seth (Migration)

[2018] AATA 3401

Seth (Migration) [2018] AATA 3401 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Himanshu Seth

CASE NUMBER:  1707139

DIBP REFERENCE(S):  BCC2016/3067894

MEMBER:Karen Synon

DATE:30 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.234(2)(a) of Schedule 2 to the Regulations.

Statement made on 30 July 2018 at 10:58am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement for suitable skills assessment to be undertaken prior to the time of application – Evidence of skills assessment provided – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.234(2)(a)

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 and Border Protection on 28 March 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 September 2016.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Motor Mechanic (General)’.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.234(2) of Schedule 2 to the Regulations because at the time of application, an assessing authority had not assessed the applicant’s skills as suitable for the occupation.

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

7. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is cl.186.234(2)(a).

10. For an applicant in the Direct Entry stream, cl.186.234(2)(a) requires that at the time of application the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority.

11. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 16/059.  For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa.  For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

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

13. In a submission the applicant’s representative contended that the delegate had incorrectly determined that the applicant’s Job Ready Program Skills Assessment issued by TRA on 4 August 2016 was the first step of the Job Ready Program and is suitable only to apply for a subclass 485 visa.

14. It was further contended that what was provided was a TRA Job Ready Final Assessment Outcome dated 4 August 2016 which is the fourth and final step of TRA skills assessment process and follows the TRA Provisional Skills Assessment (which was provided and is dated 29 April 2015); the Job Ready Employment which is the second step; and the Job Ready Workplace Assessment (which was provided and is dated 16 May 2016).

15. The Tribunal has reviewed the relevant requirements and is satisfied that the TRA Job Ready Final Assessment Outcome dated 4 August 2016 does satisfy cl.186.234(2)(a) because the relevant assessing authority, being TRA, has assessed the applicant’s skills as suitable for his nominated skilled occupation of ‘Motor Mechanic (General)’, the assessment is not for a Subclass 485 (Temporary Graduate) visa, the assessment does not specify a period during which the assessment is valid; and not more than 3 years has passed since the date of the assessment.

16. On this basis the Tribunal is satisfied that cl.186.234(2)(a) is met.

17. Given these findings, 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 application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.234(2)(a) of Schedule 2 to the Regulations.

    Karen Synon
    Member