SINGH (Migration)

[2018] AATA 2434

SINGH (Migration) [2018] AATA 2434 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURLAL SINGH

CASE NUMBER:  1725012

DIBP REFERENCE(S):  BCC2017/1031247

MEMBER:Susan Trotter

DATE:4 June 2018

PLACE OF DECISION:  Brisbane

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.485.224 of Schedule 2 to the Regulations.

Statement made on 04 June 2018 at 5:54pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Chef ANZSCO code 351311– Successful skills assessment provided – Qualification obtained in Australia while holding a student visa –Decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.03, Schedule 2, cl 485.224

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minister) on 25 September 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

   [1] Now the Minister for Home Affairs

2. The applicant is a 24 year old citizen of India. He first arrived in Australia in May 2014 on a Subclass 573 (Higher Education Sector) visa and has undertaken various study in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 15 March 2017.

3. 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 (the Regulations).

4. The delegate refused the visa on the basis that the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because he did not provide evidence of the required skills assessment by the appropriate authority to the then Department of Immigration and Border Protection[2] (the Department).

   [2] Now the Department for Home Affairs

5. The applicant was represented in relation to the review by his registered migration agent.

6. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear at a hearing before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which criteria include cl.485.224 of Schedule 2 to the Regulations.

9. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last three 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).

10. There is an additional requirement if the skills assessment was based on a qualification or qualifications obtained in Australia while the applicant held a student visa. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualifications must have been obtained as a result of studying a registered course or courses (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).

11. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Has the applicant been assessed as suitable for the nominated occupation? And,

    (b)  Were the applicant’s skills assessed on the basis of a qualification or qualifications obtained in Australia while the applicant held a student visa with the qualification, or qualifications, obtained as a result of studying a registered course or courses?

    CONSIDERATION

    Issue 1 - Has the applicant been assessed as suitable for the nominated occupation?

12. In his visa application, the applicant nominated the occupation of Chef (ANSCO 351311), which is a specific skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

13. Despite various correspondence between the applicant’s representative and the Department, and despite the Department giving a number of extensions of time in which the applicant could provide evidence that he had obtained the required skills assessment from the appropriate authority, as at 25 September 2017, the applicant had not provided a copy of a successful skills assessment to the Department.

14. On 22 May 2018, the applicant provided the Tribunal with a favourable skills assessment dated 8 November 2017, for the nominated occupation, from TRA. On 30 May 2018, the Tribunal received independent confirmation from TRA that the skills assessment of 8 November 2017 was valid and genuine.

15. The applicant’s skills have therefore been assessed within the last three years by a relevant assessing authority as suitable for the nominated skilled occupation.

16. The requirements of cl.485.224(1) are therefore met.

17. As the skills assessment provided by the applicant does not express validity for a particular period, the requirement in cl.485.224(1A) is not relevant to this application.

    Issue 2 - Were the applicant’s skills assessed on the basis of a qualification or qualifications obtained in Australia while the applicant held a student visa with the qualification, or qualifications, obtained as a result of studying a registered course or courses?

18. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of qualifications obtained in Australia while the applicant held a student visa given that:

    (a)  Information submitted by the applicant to the Department, as well as information on the Provider Registration and International Student Management System (PRISMS) database maintained online by the Department of Education and Training, confirms that the applicant completed a Diploma of Hospitality (083165C) between 17 October 2016 and 14 April 2017 and a Certificate IV in Commercial Cookery (083163E) between 18 May 2015 and 16 September 2016, at Skills Institute Australia.

    (b)  The Department’s records show that the applicant held a Subclass 573 (Higher Education Sector) visa, a student visa, from 23 April 2014 to 15 March 2017.

19. Having had regard to the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, the Tribunal is satisfied that the above courses were registered courses.

20. The applicant therefore satisfies the requirements of cl.485.224(2).

    Conclusion

21. As the requirements of cl.485.224(1) and cl.485.224(2) are satisfied, the applicant meets cl.485.224 as a whole.

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

23. 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.485.224 of Schedule 2 to the Regulations.

    Susan Trotter
    Member