YAO (Migration)

[2018] AATA 631

YAO (Migration) [2018] AATA 631 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Weiquan Yao
Ms Silin Chen

CASE NUMBER:  1718288

DIBP REFERENCE(S):  BCC2017/998534

MEMBER:Alison Mercer

DATE:1 March 2018

PLACE OF DECISION:  Melbourne

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 01 March 2018 at 2:59pm

CATCHWORDS
Migration – Skilled (Provisional)(Class VC) visa – Subclass 485 (Temporary Graduate) – Positive skills assessment provided – Studied registered course

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, rr 1.03, 1.51, 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 Immigration on 31 July 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 March 2017. 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 first named applicant (the applicant) did not satisfy cl.485.224 of Schedule 2 to the Regulations because the delegate found that, despite providing evidence of having applied to the relevant assessing authority for her nominated skilled occupation of Chef, prior to making her visa application, she had not provided a positive skills assessment to the Department when requested to do so. She therefore did not satisfy cl.485.224(1) and thus did not meet cl.485.224 as a whole.

4. The delegate refused to grant the second named applicant (the de facto partner of the applicant) a subclass 485 visa on the basis that the second named applicant did not meet the secondary visa criteria to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that the second named applicant met the primary visa criteria in her own right.

5. The Tribunal received a review application from the applicants on 17 August 2017, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Michael Wong, as their representative and authorised recipient for correspondence.

6. On 9 January 2018, the applicant’s agent provided the Tribunal with a scanned copy of a positive provisional skills assessment as a Chef and a Cook, issued to the applicant by Trades Recognition Australia (TRA) on 19 December 2017. The agent explained that the applicant’s initial application to TRA was unsuccessful when the applicant’s former employer was unable to be contacted to verify her work experience, but that a subsequent application to TRA was successful.

7. On 15 February 2018, the Tribunal requested and received independent confirmation from TRA that the applicant’s skills assessment of 19 December 2017 was valid and genuine.

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant is seeking to satisfy the primary criteria for a subclass 485 visa in the Graduate Work stream which include cl.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?

11. 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’.

12. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.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 r.2.26B of the Regulations (r.1.03). The relevant instrument is Legislative Instrument IMMI 16/059.

13. On the evidence before the Tribunal, the applicant nominated the occupation of Chef (Australian and New Zealand Standard Classification of Occupations – ANZSCO – code 351311) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA.

14. The Tribunal is satisfied from the material on the Department’s file that the visa application, when made, was accompanied by evidence that the applicant had made an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority prior to making her visa application. The Tribunal therefore finds that the applicant satisfies the requirements of cl.485.223.

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

15. 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).

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

17. It is not disputed that, at the time of the delegate’s decision, the applicant had not obtained a positive skills assessment from TRA as a Chef. However, she has subsequently done so and has provided a copy of that skills assessment, issued 19 December 2017, to the Tribunal.  The Tribunal has independently verified with TRA that the skills assessment issued to the applicant is genuine and valid. It is expressed to be valid for the purposes of a subclass 485 visa application and is not expressed to be subject to an expiry date.

18. Accordingly, the Tribunal is satisfied that the applicant has been assessed during the last 3 years by the relevant assessing authority, TRA, as having skills suitable for her nominated occupation of Chef (ANZSCO code 351311).

19. Therefore, the Tribunal finds that the requirements of cl.485.224(1) are met.

    How and where was the qualification obtained?

20. 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 section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03).

21. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification (or qualifications) obtained in Australia while the applicant held a student visa, given that:

    ·the applicant provided evidence to the Department and Tribunal of having completed a Certificate III and Certificate IV in Commercial Cookery, and a Diploma of Hospitality Management at Royal Gurkhas Institute of Technology (RGIT) between February 2015 and December 2016; and

    ·the Department’s movement records indicate that during this period, the applicant held a subclass 573 (Higher Education Sector) student visa.

22. The Tribunal is further satisfied, having regard to information on the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, that the above courses were registered courses.

23. The applicant therefore satisfies the requirements of cl.485.224(2).

24. It follows that the applicant meets the requirements of cl.485.224 as a whole.

25. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.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.

26. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

27. 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.485.223 of Schedule 2 to the Regulations; and

    ·cl.485.224 of Schedule 2 to the Regulations.

    Alison Mercer
    Member