Sherchan (Migration)

[2018] AATA 2920

Sherchan (Migration) [2018] AATA 2920 (6 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sophiya Sherchan

CASE NUMBER:  1721982

DIBP REFERENCE(S):  BCC2017/2817764

MEMBER:Ian Berry

DATE:6 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 06 July 2018 at 9:24am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – nominated the occupation of Chef ANZSCO 351311 – No evidence of skills assessment – Decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B Schedule 2 cl 485.223

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 29 August 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant (Ms Sherchan) applied for the visa on 7 August 2017. 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). 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 visa because Ms Sherchan did not satisfy cl.485.223 of Schedule 2 to the Regulations because she did not accompany her visa application with evidence of having applied for a skills assessment for a nominated occupation by a relevant assessing authority.

4. Ms Sherchan appeared before the Tribunal on 22 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her only. 

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Ms Sherchan 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 Ms Sherchan meets those requirements.

   Had the applicant applied for a relevant skills assessment?

7. 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’.

8. ‘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 17/072.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Chef ANZSCO 351311, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia

10. Ms Sherchan conceded in not providing the information as required by Part 485 of Schedule 2. Her brother had passed away in Nepal necessitating her to return for a brief period. She was informed of the 485 visa program where she could work in Australia. She made errors in making the application.

11. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, Ms Sherchan does not satisfy the requirements of cl.485.223.

12. Therefore the requirements of cl.485.224 are not met.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Ian Berry
    Member