VILJOEN (Migration)

This matter concerned an appeal by Mr. Viljoen against the refusal of his application for a Temporary Skill Shortage (Class GK) visa (Subclass 482), medium-term stream. The primary issue before the court was whether Mr. Viljoen had demonstrated, for the purposes of clause 482.212(4) of the Migration Regulations 1994, that he possessed the necessary skills to perform the nominated occupation of Diesel Motor Mechanic in the manner specified by the Minister, which required a skills assessment. The visa was initially refused because a finalised positive skills assessment from VETASSESS had not been provided at the time of the decision.

The court was required to determine if the applicant had met the criteria under clause 482.212(4), which mandates that an applicant demonstrate the necessary skills in the manner specified by the Minister, typically through a skills assessment. The applicant had lodged his visa application on 1 February 2019, and his nomination was approved. While he had lodged an application for a skills assessment with VETASSESS, it was not finalised by the time the Department of Home Affairs made its refusal decision on 6 May 2019. The applicant argued that the delays in obtaining the skills assessment were beyond his control, citing VETASSESS processing times of approximately three months, and that he had provided evidence of commencing the assessment process as required by Schedule 1, item 1240(3)(g).

The court found that the applicant had provided evidence of having commenced a skills assessment process, which was considered sufficient to meet the requirements of clause 1240(3)(g) at the time of application. Furthermore, the court noted that the VETASSESS skills assessment process, including Stage 1 and the technical interview (Stage 2), experienced delays that were outside the applicant's control. Crucially, Mr. Viljoen received confirmation of a successful skills assessment from VETASSESS on 13 May 2019, shortly after the visa refusal. Given these circumstances, the court determined that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with a direction that Mr. Viljoen met the criteria under clause 482.212(4) of Schedule 2 to the Regulations. The reconsideration was to address the remaining criteria for the visas in respect of all applicants claimed as members of the same family unit as the primary applicant.