Wong (Migration)

[2021] AATA 1327

Wong (Migration) [2021] AATA 1327 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Querlita Jasmin Culaban Wong

CASE NUMBER:  1900049

HOME AFFAIRS REFERENCE:               BCC2018/914816

MEMBER:Lilly Mojsin

DATE:30 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(e) of Schedule 2 to the Regulations

Statement made on 30 March 2021 at 8.50 am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – necessary skills, qualification and experience – Chef – skills assessment results – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 15 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 26 February 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) because the delegate was not satisfied that the applicant demonstrated she had the skills necessary to perform the occupation of Chef (ANZSCO 351311) in the manner specified by the Minister.

4. The Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 457.223(4)(e) states that if the Minister requires the applicant to demonstrate they have the skills that are necessary to perform the occupation, the applicant does so in the manner specified. The issue in this case is whether the applicant satisfies this requirement.

6. On 27 March 2018, the applicant provided evidence to the Department that she had applied for a kills assessment on 26 February 2018.However, she did not provide evidence of the outcome of that assessment to the Department. On 24 July 2018, the applicant was requested to provide evidence to demonstrate that she had the skills necessary to perform the tasks of her nominated occupation of Chef by way of a skills assessment outcome from Trades Recognition Australia (TRA). She did not respond to this request and the delegate was not satisfied that cl.457.223(4)(e) was met.

7. On 30 September 2020 the applicant provided the Tribunal with a copy of her skills assessment results from VETASSESS, on behalf of TRA dated 25 September 2020. This stated that she had successfully completed the skills assessment in the nominated occupation of Chef (ANZSCO 351311).

8. On the basis of the above evidence, the Tribunal finds that the applicant meets cl.457.223(4)(e).

9. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

   DECISION

10. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(e) of Schedule 2 to the Regulations

    Lilly Mojsin
    Member