Shimoyama (Migration)

[2024] AATA 1663

Shimoyama (Migration) [2024] AATA 1663 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Felipe Kazuo Shimoyama

REPRESENTATIVE:  Ms Amanda Yanzhi Wu

CASE NUMBER:  2404821

HOME AFFAIRS REFERENCE(S):          BCC2023/4760275

MEMBER:Peter Katsambanis

DATE:29 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.223 of Schedule 2 to the Regulations; and

·cl 485.224 of Schedule 2 to the Regulations.

Statement made on 29 May 2024 at 11:52am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – civil engineering draftsperson – skills assessment not provided with application – later successful skills assessment based on completion of degree in home country – additional requirements for studies or qualifications in Australia do not apply – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223(1), 485.224(1), (1A), (2)

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 21 February 2024 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 August 2023. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 the applicant did not satisfy cl 485.224 of Schedule 2 to the Regulations because the applicant did not provide the required skills assessment outcome from the appropriate authority.

4. The applicant was represented in relation to the review.

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 which include cls 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. Neither of these requirements apply if the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 21 August 2023. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223(1) 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 reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument IMMI 19/051.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Civil Engineering Draftsperson – 312211 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified in the instrument is either Engineers Australia or VETASSESS.

10. Together with his visa application to the Department, the applicant submitted a confirmation email from VETASSESS indicating that the applicant had applied to this body on 18 August 2023 to have their skills assessed.

11. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant satisfies the requirements of cl 485.223(1).

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

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

13. In the applicant’s case, he has provided a successful skills assessment dated 24 November 2023 from VETASSESS indicating that he is suitable for the nominated position of Civil Engineering Draftsperson – 312211. This assessment letter indicates that the assessment was made on the basis of the applicant’s successful completion of a bachelor’s degree at Faculdade de Engenharia de Sorocaba in Brazil. Therefore, on the basis of this successful skills assessment, the requirements of cl 485.224(1) and (1A) are met.

    How and where was the qualification obtained?

14. 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 Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students’ (reg 1.03).

15. As discussed above, the applicant’s skills assessment was based on his studies in Brazil and not on any studies or qualifications obtained in Australia. Accordingly, cl 485.224(2) does not apply in the applicant’s circumstances. Therefore, it follows that the applicant meets the requirements of cl 485.224.

16. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cls 485.223 and 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

17. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.223 of Schedule 2 to the Regulations; and

    ·cl 485.224 of Schedule 2 to the Regulations.

    Peter Katsambanis
    Member