Widjaja (Migration)

[2021] AATA 2718

Widjaja (Migration) [2021] AATA 2718 (6 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nicholas Surya Widjaja

CASE NUMBER:  1914937

HOME AFFAIRS REFERENCE(S):          BCC2018/3234733

MEMBER:Warren Stooke AM

DATE:6 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 6 July 2021 at 9:21am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – IELTS test booking – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26; 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 7 June 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 August 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 visa on the basis that the applicant did not satisfy cl 485.224 of Schedule 2 to the Regulations because the applicant did not provide a skills assessment for the nominated occupation.

4. The applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments.

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 7 June 2019 and that he understood the content of the decision. In this regard, the applicant stated that he understood that because he did not have the approved skill assessment he could not get the visa .

6. The applicant confirmed to the Tribunal that he had provided a copy of the delegate’s decision to the Tribunal with his review application.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The applicant is a 29 year old from Indonesia, who was granted a Bridging Visa A on the 27 August 2018.

11. The applicant provided evidence to the Department that he booked an English language IELTS test on 14 August 2018.

12. The applicant provided evidence that he applied to Trades Recognition Australia for a skills assessment on 27 August 2018.

13. The applicant provided evidence that he had completed the following courses of study in Australia:

    a.Certificate III in Light Vehicle Mechanical Technology on 21 June 2017;

    b.Certificate IV in Automotive Diagnostics on 30 November 2017;

    c.Diploma of Automotive Technology on 1 June 2018.

14. The applicant was asked if he had a successful assessment from Trades Recognition Australia and he responded that he had a ‘negative outcome’. He said that he worked with an Italian business and was paid in cash.

15. The applicant confirmed to the Tribunal that he had not met the job ready requirements and that he agreed he had no successful assessment.

    Had the applicant applied for a relevant skills assessment?

16. 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’.

17. ‘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).

18. On the evidence before the Tribunal, the applicant nominated the occupation of Motor Mechanic (General) – ANZSCO Code: 321211, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia.

19. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.

    Conclusion on Suitable Skills Assessment

20. It follows that the applicant does not meet the requirements of cl.485.224.

21. 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.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Warren Stooke AM
    Member