Singh (Migration)

[2019] AATA 3620

Singh (Migration) [2019] AATA 3620 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

CASE NUMBER:  1817799

DIBP REFERENCE(S):  BCC2018/1090159

MEMBER:Alison Mercer

DATE:2 July 2019

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 02 July 2019 at 5:16pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – successful TRA skills assessment result provided – registered course – qualification obtained in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223, 485.224
Education Services for Overseas Students Act 2000

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 5 June 2018 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 applied for the visa on 7 March 2018. 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 the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations, which required that the applicant had provided a positive skills assessment for his nominated skilled occupation. The delegate found that although the applicant had provided a receipt from the relevant assessing authority for lodging a skills assessment application for his nominated occupation of Painting Trades Worker (ANZSCO code 332211), he did not provide the actual skills assessment despite being requested to provide it.

4. The Tribunal received a review application from the applicant on 18 June 2018. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr John Kotsifas, as his representative and authorised recipient for correspondence.

5. On 3 July 2018, the applicant’s agent wrote to the Tribunal attaching a scanned copy of a skills assessment issued to the applicant by Trades Recognition Australia (TRA) on 2 July 2018 stating that his skills have been assessed as suitable for the occupation of Painting Trades Worker (ANZSCO 332211).

6. On 9 July 2018, the Tribunal wrote to TRA to confirm the validity of the skills assessment provided by the applicant. On the same date, TRA confirmed that the skills assessment was genuine and valid.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant 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 the applicant meets those requirements.

   Had the applicant applied for a relevant skills assessment?

10. 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’.

11. ‘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 18/007.

12. On the evidence before the Tribunal, the applicant nominated the occupation of Painting Trades Worker (ANZSCO code 332211) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

13. From its review of the Departmental file, the Tribunal is satisfied that the applicant provided a receipt with his subclass 485 visa application made on 7 March 2018, indicating that he had applied to TRA for a skills assessment.

14. It is not disputed that the applicant did not provide a skills assessment to the Department, despite the delegate’s request for him to do so.  However, TRA issued him with a positive skills assessment for his occupation of Painting Trades Worker on 2 July 2018.

15. TRA has independently confirmed to the Tribunal on 9 July 2018 that this skills assessment is valid and was genuinely issued to the applicant on 2 July 2018.

16. Accordingly, 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 Tribunal finds that the applicant satisfies the requirements of cl.485.223.

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

17. 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).

18. The Tribunal is satisfied that the applicant’s skills assessment issued by TRA on 2 July 2018 meets cl.485.224(1) and that there is no validity period expressed in the skills assessment so cl.485.224(1A) is not relevant in this case.

19. The Tribunal therefore finds that the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

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

21. The Tribunal has reviewed the Department’s file and its electronic records and is satisfied that:

    ·the applicant completed a Certificate III in Painting and Decorating at Western Institute of Technology in Melbourne between 15 July 2014 and 7 September 2015;

    ·he completed a Diploma of Building and Construction at Della Institute in Melbourne between 25 July 2016 and 10 September 2017; and

    ·the applicant held subclass 572, 573 and 500 student visas throughout this period.

22. 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 section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03).

23. Therefore, on the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa. Having reviewed the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, the Tribunal is satisfied that the above qualifications were obtained as a result of studying registered courses, and therefore it finds that the applicant satisfies the requirements of cl.485.224(2).

24. Accordingly, it follows that the applicant meets the requirements of cl.485.224.

25. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.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

26. 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.

    Alison Mercer
    Member