Wadhwa (Migration)

[2021] AATA 2376

Wadhwa (Migration) [2021] AATA 2376 (22 June 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamal Wadhwa

CASE NUMBER:  1900614

DIBP REFERENCE(S):  BCC2018/1254695

MEMBER:John Cipolla

DATE OF DECISION:  22 June 2021

DATE CORRIGENDUM

SIGNED:29 June 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph numbering ’11.’ on page 3 of the decision should be removed

John Cipolla
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamal Wadhwa

CASE NUMBER:  1900614

HOME AFFAIRS REFERENCE(S):          BCC2018/1254695

MEMBER:John Cipolla

DATE:22 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 22 June 2021 at 3:20pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – skills assessment – occupation of Cook – qualification obtained in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.223

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 19 December 2018 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 March 2018. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl 457.223(4)(e) was not met because the applicant was required by the delegate to have his skills as a Cook assessed by Trades Recognition Australia and failed to do so. The applicant advised that he was not eligible for this assessment because he had less than 3 years of work experience as a Cook. The applicant advised that he hoped to have his qualifications assessed, namely a Certificate IV in Commercial Cookery, but the qualification was issued on the basis of prior learning and not on the basis of a qualification obtained in Australia. The delegate concluded that as the qualification was issued on the basis of prior learning cl 457.223(4)(e) was not able to be satisfied.

4. The applicant was represented in relation to the review by his 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 issue in this case is whether the applicant is able to meet the requirements of cl 457.223(4)(e). This requires that if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister.

7. The evidence as noted indicates that the applicant was asked to have his skills assessed by Trades Recognition Australia and elected not to do so, relying on his prior learning to establish he had the requisite skills as a Cook.

8. For the purposes of this review the Tribunal wrote to the applicant under s.359(2) of the Act seeking further information from the applicant on 24 March 2021 seeking evidence that the applicant had undertaken the relevant skills assessment with Trades Recognition Australia as he had been requested to. This information was due to be provided to the Tribunal on 7 April 2021 and as at 22 June 2021 no response has been forthcoming, and the Tribunal is able to proceed to decision on the basis of the evidence before it.

9. The evidence before the Tribunal is such that the applicant had been requested by the Departmental delegate to have his skills assessed by Trades Recognition Australia in order to demonstrate that he had the skills necessary to perform the occupation of Cook. The applicant failed to engage in this assessment.

10. In the absence of evidence which is able to satisfy the Tribunal that the applicant is able to demonstrate that he has the skills necessary to perform the occupation of Cook in the manner in which this assessment was specified (through Trades Recognition Australia) the Tribunal is unable to find the applicant meets the requirements of cl 457.223(4)(e).

11. decision

12. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    John Cipolla
    Senior Member