YAO (Migration)

The Administrative Appeals Tribunal considered the application of an individual seeking a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The primary dispute concerned whether the applicant met the criteria relating to skills assessment for their nominated occupation.

The Tribunal was required to determine if the applicant satisfied clause 485.223 of Schedule 2 to the Regulations, which mandates evidence of an application for a skills assessment by a relevant assessing authority at the time of the visa application, and clause 485.224, which requires a positive assessment of the applicant's skills for the nominated occupation by a relevant assessing authority within the last three years. The Tribunal also had to consider an additional requirement if the skills assessment was based on an Australian qualification obtained while holding a student visa.

The Tribunal found that the applicant had nominated the occupation of Chef, which is a specified skilled occupation, and that the relevant assessing authority was the Trades Recognition Australia (TRA). The Tribunal was satisfied that the applicant had provided evidence of applying for a skills assessment by TRA prior to lodging their visa application, thus meeting clause 485.223. Regarding clause 485.224, while the applicant had not initially obtained a positive skills assessment by the time of the delegate's decision, they subsequently provided a genuine and valid assessment from TRA, issued on 19 December 2017, which was valid for a subclass 485 visa application and had no expiry date.

Consequently, the Tribunal remitted the application for reconsideration by the Department, with a direction that the applicant meets the criteria under clauses 485.223 and 485.224 of Schedule 2 to the Regulations. The application of the second applicant, who applied as a family unit member, was to be determined by reference to the outcome of the first applicant's application.