SHAIK (Migration)

This matter concerned an appeal by a visa applicant against a decision regarding their application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The nominated occupation was Motor Mechanic (General). The core of the dispute revolved around the applicant's ability to demonstrate the necessary skills for the nominated occupation, specifically in response to a request for a Trades Recognition Australia (TRA) 457 Skills Assessment. The applicant had not provided this specific assessment by the delegate's decision date, nor by the Tribunal's subsequent request.

The legal issues before the Tribunal were whether the applicant met the requirements of subclause 457.223(4)(da) and, crucially, subclause 457.223(4)(e) of the Migration Regulations. Subclause (4)(da) requires the applicant to possess the necessary skills, qualifications, and employment background for the nominated occupation. Subclause (4)(e) mandates that if required by the Minister, the applicant must demonstrate their skills in the manner specified by the Minister. The delegate had specifically requested a TRA 457 Skills Assessment, which the applicant's representative noted was no longer obtainable.

The Tribunal reasoned that while the specific TRA 457 Skills Assessment was unavailable, the applicant had provided substantial alternative evidence. This included progress towards a skills assessment for the replacement Temporary Skills Shortage (Subclass 482) visa, a statutory declaration from their sponsoring employer confirming extensive work experience as a Motor Mechanic, and a Tradesperson’s Certificate. The Tribunal considered that this evidence, taken together, supported the applicant's claim to possess the necessary skills for the nominated occupation.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant be considered to meet the criteria of subclause 457.223(4)(e).