THAPALIYA (Migration)

[2021] AATA 2320

THAPALIYA (Migration) [2021] AATA 2320 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sudharson THAPALIYA
Mrs Srijana MANANDHAR
Master Aarav M THAPALIYA

CASE NUMBER:  1921854

HOME AFFAIRS REFERENCE(S):          BCC2018/5875593

MEMBER:Antonio Dronjic

DATE:4 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 04 May 2021 at 3:51pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – negative outcome from TRA – no positive skills assessment at time of hearing –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 29 July 2019 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 29 December 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 (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 of Schedule 2 to the Regulations. The applicant has failed to provide evidence that his skills for the nominated occupation had been assessed as suitable by the relevant assessing authority.

4. The applicants appeared before the Tribunal on 4 May 2021 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 cl 485.223 and 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?

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had nominated the occupation of Motor Mechanic (General) when making the application. He indicated on the form that on 29 December 2018, he had made an application for a skills assessment to Trades Recognition Australia (TRA).

10. In his oral evidence, the applicant stated that on 29 April 2019, he received negative outcome from TRA related to his skills assessment application lodged on 29 December 2018.

11. On 15 August 2020, the applicant lodged another application to TRA, nominating the same occupation of Motor Mechanic. On 23 September 2020, he received negative outcome from TRA.

12. The applicant confirmed in his evidence that, as at the time of the hearing, he does not have positive skills assessment for his nominated occupation.

13. Based on the evidence before it, the Tribunal finds that the skills of the applicant for his nominated skilled occupation have not been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. Therefore, the requirements of cl 485.224 are not met.

14. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

15. To meet cl.485.311, the secondary applicants must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 485 visa. As the first named applicant does not satisfy the primary criteria for Subclass 485, the Tribunal finds that the secondary applicants do not satisfy cl.485.311. There is no evidence before the Tribunal that the secondary applicants meet the primary criteria in their own right.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Antonio Dronjic
    Member