Shankar (Migration)

[2021] AATA 1087

Shankar (Migration) [2021] AATA 1087 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rupesh Prakash Shankar

CASE NUMBER:  1836155

HOME AFFAIRS REFERENCE(S):          BCC2018/968421

MEMBER:R. Skaros

DATE:9 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(e) of Schedule 2 to the Regulation.

Statement made on 09 April 2021 at 5:18pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – skills assessment by authorised assessor provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(e)

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 Home Affairs on 3 December 2018 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 February 2018. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl 457.223(4)(e) because the delegate was not satisfied that the applicant demonstrated he had the skills necessary to perform the occupation of Panelbeater (ANZSCO 351311) in the manner specified by the Minister.

4. The Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Clause 457.223(4)(e) states that if the Minister requires the applicant to demonstrate they have the skills that are necessary to perform the occupation, the applicant does so in the manner specified. The issue in this case is whether the applicant satisfies this requirement.

7. The applicant provided evidence of a successful Trades Recognition Australia (TRA) Stage 1 Skills Assessment which was lodged on the 19 September 2018. The Department requested the applicant provide the Stage 2 Skills Assessment. The applicant did not do so, and the delegate was not satisfied that cl.457.223(4)(e) was met.

8. On 7 February 2019 the applicant provided the Tribunal with a copy of his skills assessment results from VETASSESS, on behalf of TRA dated 5 February 2019. This stated that he had successfully completed the skills assessment in the nominated occupation of Panelbeater (ANZSCO 324111). This was verified by the Tribunal.

9. On the basis of the above evidence, the Tribunal finds that the applicant meets cl.457.223(4)(e).

10. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

11. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(e) of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member