Tabbassum (Migration)

[2024] AATA 3719

Tabbassum (Migration) [2024] AATA 3719 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms  Tabbassum
Mr Kanhiya

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2411890

HOME AFFAIRS REFERENCE(S):          BCC2023/5891307

MEMBER:Antonio Dronjic

DATE:27 August 2024

PLACE OF DECISION:  Melbourne

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

·cl 485.224 (1) of Schedule 2 to the Regulations.

Statement made on 27 August 2024 at 3:49pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – Cook (ANZSCO 351411) – applicants submitted to the Tribunal a provisional skill assessment results from TRA – 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 7 May 2024 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 October 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 visas because the first named applicant (the applicant) did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because at the time of delegates’ decision, the applicant’s skills have not been assessed for the occupation of a Cook (ANZSCO 351411) by the relevant assessing authority.

4. The applicants applied to the Tribunal on 14 May 2024 for review of the delegate’s decision. With the review application, the applicants’ provided a copy of the primary decision record.

5. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the visa applicants’ favour based on the material before it, so there was no need for the visa applicants to be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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).

8. On the evidence before the Tribunal, the applicant nominated the occupation of a Cook. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

9. On 20 May 2024, the applicants submitted to the Tribunal a provisional skill assessment results from TRA dated 23 June 2023 as evidence that the first named applicant was successful with his application.

10. The Tribunal finds that the first named applicant’s skills have been assessed during the last three years as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore satisfies the requirements of cl.485.224(1). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

11. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.224 (1) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member