Wangdi (Migration)

[2022] AATA 2411

Wangdi (Migration) [2022] AATA 2411 (13 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kelzang Wangdi
Mrs Kesang Wangmo
Master Thinley Pelvar Namgyel
Miss Pema Seddon Wangdi

REPRESENTATIVE:  Mr Sagar Kumar Sharma (MARN: 1806897)

CASE NUMBER:  2206815

HOME AFFAIRS REFERENCE(S):          BCC2021/1022303 BCC20211022303

MEMBER:Namoi Dougall

DATE:13 July 2022

PLACE OF DECISION:  Sydney

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 485.223 of Schedule 2 to the Regulations; and

·cl 485.224 of Schedule 2 to the Regulations.

Statement made on 13 July 2022 at 4:41pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – chef/cook – skills assessment by relevant authority on basis of qualification obtained in Australia – completed registered course while holding student visa – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, Schedule 2, cls 485.223, 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 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 3 May 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 (the applicant) did not satisfy cl 485.224 of Schedule 2 to the Regulations because the applicant had not provided a skills assessment outcome.

4. The applicants were represented in relation to the review.

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

   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 cls 485.223 and 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.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

8. ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument IMMI 19/051.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Chef (ANZSCO 351311) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

10. On 29 April 2021, the applicant applied to the TRA for a skill assessment and the application was provided to the Department with the business nomination application. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant satisfies the requirements of cl 485.223.

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

11. 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).

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

13. On 3 August 2021, the applicant received a successful assessment of his provisional skills Assessment for the occupation of Chef (351311) and Cook (351411). Therefore, the Tribunal is satisfied that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation. The assessment did not specify a validity period. Therefore, the requirements of cl 485.224 are met.

    How and where was the qualification obtained?

14. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course (cl 485.224(2)). ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under s 9 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students’ (reg 1.03).

15. Provided to the Department were the applicant’s Certificate IV in Commercial Cookery and his Diploma of Hospitality Management which were awarded Choice Business College located in Melbourne, Victoria. The Certificate IV was awarded on 27 January 2020 and the Diploma was awarded on 11 January 2021 and the applicant held a Subclass 500 Student Visa during the time he was studying. There is nothing on the files to indicated that the TRA assessment was not based on these qualifications. Therefore, Tribunal is satisfied that the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa. Provided to the Department was an Overseas Student Confirmation of Enrolment for the Diploma course. The Certificates for both Certificate IV and Diploma include the courses’ RTO Code and the education provider’s CRICOS number. As the qualifications were] obtained as a result of studying a registered course, the applicant satisfies the requirements of cl 485.224(2).

16. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cls 485.223 and 485.224 of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second named applicant applied for the visas on the basis of being a member of the family unit of the applicant, her application will also be remitted to the Department for reconsideration upon its reconsideration of the applicant’s application.

    DECISION

17. 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 485.223 of Schedule 2 to the Regulations; and

    ·cl 485.224 of Schedule 2 to the Regulations.

    Namoi Dougall
    Member