Srimadhipathi Rajapakshe Thalgahagoda Gedara (Migration)

[2022] AATA 3697

Srimadhipathi Rajapakshe Thalgahagoda Gedara (Migration) [2022] AATA 3697 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rasanga Sandakalani Thalgahagoda Srimadhipathi Rajapakshe Thalgahagoda Gedara

REPRESENTATIVE:  Mr Galhenage Ashad Perera (MARN: 0744083)

CASE NUMBER:  2206721

HOME AFFAIRS REFERENCE(S):          BCC2021/549132

MEMBER:Antonio Dronjic

DATE:21 September 2022

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 485.224 (1) of Schedule 2 to the Regulations.

Statement made on 21 September 2022 at 2:37pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –successful TRA skills assessment result provided – Chef – 351311/Cook (ANZSCO 351411) – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 Minister for Home Affairs on 2 May 2022 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 16 April 2021. 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 (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 visas because the first named applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because she did not provide a skills assessment for her nominated skilled occupation.

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

   consideration of Claims and evidence

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl 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.

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

6. 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).

7. On 23 May 2022 the Tribunal received a copy of the provisional skills assessment results from Trades Recognition Australia dated 8 July 2021 as evidence that the applicant’s skills assessment application for her nominated occupation of a Chef – 351311/Cook (ANZSCO 351411) has been successful. Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   decision

8. 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 (1) of Schedule 2 to the Regulations.

   Antonio Dronjic
   Member