ZHENG (Migration)

[2017] AATA 2477

ZHENG (Migration) [2017] AATA 2477 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Boya ZHENG

CASE NUMBER:  1718962

DIBP REFERENCE(S):  BCC2017/997970

MEMBER:Wan Shum

DATE:22 November 2017

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 of Schedule 2 to the Regulations.

Statement made on 22 November 2017 at 4:11pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Child care centre manager – Skills Assessment provided

LEGISLATION
Education Services for Overseas Students Act 2000, s.9

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 8 August 2017 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 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 finding that the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because she did not provide a skills assessment prior to the decision being made.

4. The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.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 that requirement.

   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. There is an additional requirement that, if the skills assessment was based on 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).

9. On review, the applicant provided a copy of a TRA skills assessment dated 21 June 2017 stating that she is suitable for the occupation of Child care centre manager. This is the skilled occupation that she nominated on her visa application form.

10. The Tribunal sought verification of the skills assessment from TRA who confirmed that the applicant was found suitable for the nominated occupation of Child care centre manager. TRA also advised that the skills assessment was based on the Diploma of Early Childhood Education and Care that the applicant was awarded by Canberra Institute of Technology.

11. The Tribunal thus finds on the information before it that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation.

12. Furthermore, on the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa. The Canberra Institute of Technology is a registered under the relevant section of the ESOS Act to provide the diploma course. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).

13. It follows that the applicant meets the requirements of cl.485.224.

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

    DECISION

15. 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 of Schedule 2 to the Regulations.

    Wan Shum
    Member