Xiao (Migration)

[2020] AATA 1555

Xiao (Migration) [2020] AATA 1555 (21 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lingjing Elizabeth Xiao

CASE NUMBER:  1933472

DIBP REFERENCE(S):  BCC2019/3799258

MEMBER:R. Skaros

DATE:21 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.224(1) of Schedule 2 to the Regulations.

Statement made on 21 February 2020 at 2:22pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment by the relevant assessing authority – occupation of Early Childhood (Pre-Primary School) Teacher – skills assessment provided upon review – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 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 Immigration on 20 November 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 July 2019. 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 (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 because the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations the delegate was not satisfied the skills of the applicant for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements in cl.485.224(1).

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

7. 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).

8. The applicant nominated the occupation of Early Childhood (Pre-Primary School) Teacher (ANZSCO 241111) which is a specified skilled occupation. For that occupation, the relevant assessing authority is the Australian Institute for Teaching and School Leadership Limited (AITSL).

9. The applicant applied for a skills assessment to AITSL prior to lodging her visa application. The Department requested the applicant to provide evidence of the outcome of the skills assessment application, however, the applicant was unable to do so within the period specified by the Department.

10. The Tribunal has now received from the applicant evidence that her skills have been assessed as suitable for the nominated skilled occupation. The assessment was completed on 25 October 2019, which is during the last three years. The assessment has been verified by the Tribunal. There is nothing to suggest that the validity period of the assessment has ended.

11. Given the above, 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 and that the period has not ended. The Tribunal finds that the requirements of cl.485.224(1) are therefore met.

12. As the applicant now meets cl.485.224(1), the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

13. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.224(1) of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member