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1220260 [2013] MRTA  1316  (13 June 2013)

Last Updated: 25 June 2013

1220260  [2013] MRTA 1316  (13 June 2013)

DECISION RECORD

APPLICANT: Miss You Jin Sim

MRT CASE NUMBER: 1220260

DIAC REFERENCE(S): BCC2012/309127

TRIBUNAL MEMBER: Bruce MacCarthy

DATE: 13 June 2013

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 criterion for a Subclass 485 (Skilled - Graduate) visa:

• cl.485.221(1) of Schedule 2 to the Regulations.
  

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 and Citizenship 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 to the Department of Immigration and Citizenship for a visa on 29 March 2012. The delegate decided to refuse to grant the visa on 19 December 2012 and notified the applicant of the decision and her review rights. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.211(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she had not submitted evidence of a successful skills assessment.
3. The applicant applied to the Tribunal on 20 December 2012 for review of the delegate’s decision. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act and that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

4. The Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for permanent General Skilled Migration visas. At the time the visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: Subclass 485 (Skilled – Graduate) and Subclass 487 (Skilled – Regional Sponsored). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 485 visa.

Criteria in issue

5. The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations. Relevantly to this matter, a primary criterion to be met is cl.485.221. This clause requires that the applicant’s skills have been assessed as suitable for the nominated skilled occupation. If the assessment was on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must be obtained as a result of a studying a registered course.

Defined terms

6. ‘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. The relevant instrument for this purpose is Legislative Instrument IMMI12/023.
7. ‘Relevant assessing authority’ means a person or body specified under r.2.26B of the Regulations: r.1.03. Regulation 2.26B provides that the Minister may specify, by an instrument in writing, a person or body as the relevant assessing authority for: (a) a skilled occupation; and (b) one or more countries; for the purposes of an application for a skills assessment made by a resident of one of those countries. The relevant instrument for this purpose is Legislative Instrument IMMI12/023.
8. Regulation 1.03 defines ‘registered course’ as 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’.

CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to other material available to it from a range of sources.

The applicant, a national of South Korea born in February 1989, applied for a Class VC visa on 29 March 2012. She nominated the occupation of Secondary School Teacher in the application form. This occupation has the ANZSCO code 241411. The applicant stated that she had applied for the skills assessment to the Australian Institute for Teaching and School Leadership (“AITSL”) on 7 February 2012. She provided the reference/receipt number WAMS00411/11.

10. In November 2012, the delegate wrote to the applicant inviting her to provide evidence of the skills assessment. On 19 December 2012, the applicant having failed to do so, the delegate decided to refuse to grant the visa to the applicant. The delegate was not satisfied that the applicant’s skills had been assessed as suitable by the relevant assessing authority. The delegate was not satisfied that the applicant met cl. 485.221(1).
11. The applicant sought review of the delegate’s decision on 20 December 2012. Among the documents submitted with the application was evidence of a successful qualifications assessment issued by AITSL on 18 April 2012 for the occupation of Secondary School Teacher. It is not apparent why this document was not provided to the delegate before the decision under review was made.

FINDINGS AND REASONS

12. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
13. The issue in the present case is whether the applicant’s skills have been recognised as suitable by the relevant assessing authority for the nominated occupation.
14. When making the application, the applicant nominated the occupation of Secondary School Teacher (ANZSCO 241411), which is a skilled occupation specified in IMMI12/023. For that occupation, a relevant assessing authority specified in that instrument is AITSL.
15. On 20 December 2012, the applicant provided to the Tribunal a copy of the qualifications assessment issued by AITSL on 18 April 2012 for the occupation of Secondary School Teacher. The Tribunal finds on the basis of this evidence that the applicant’s skills have been assessed as suitable for the nominated skilled occupation (Secondary School Teacher) by the relevant assessing authority (AITSL). The Tribunal therefore finds that the applicant meets the requirements of cl.485.221(1).

DECISION

16. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 (Skilled - Graduate) visa:
    • cl.485.221(1) of Schedule 2 to the Regulations.
      

Bruce MacCarthy
Member