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1303868 [2013] MRTA  2580  (7 October 2013)

Last Updated: 18 October 2013

1303868  [2013] MRTA 2580  (7 October 2013)

DECISION RECORD

APPLICANT: Mr Balapuwaduge Stephan Pramod Ashon Mendis

MRT CASE NUMBER: 1303868

DIAC REFERENCE(S): BCC2012/896512

TRIBUNAL MEMBER: Jennifer Beard

DATE: 7 October 2013

PLACE OF DECISION: Melbourne

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.485.214 of Schedule 2 to the Regulations; and
• cl.485.221 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 on 21 February 2013 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 17 August 2012. At the time the visa application was lodged, Class VC contained two subclasses: 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which 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.485.221 of Schedule 2 to the Regulations because that at the time of decision the review applicant had not provided any evidence that his skills for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.
4. The applicant was represented in relation to the review by his registered migration agent.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching this decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the review applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. To satisfy the primary criteria for the grant of a Subclass 485 visa the applicant must have applied for a skills assessment for their nominated skilled occupation and been assessed as suitable for that occupation. There is an additional requirement if the skills assessment is based on a qualification obtained in Australia while the applicant held a student visa. The issue in the present case is whether the applicant meets those requirements.

Had the applicant applied for a relevant skills assessment?

7. Clause 485.214 requires that at the time of application the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.
8. ‘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 IMMI 12/065.
9. ‘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 for this purpose is Legislative Instrument IMMI 12/065.
10. On the evidence before the Tribunal, the applicant nominated the occupation of Carpenter ANZSCO 331212 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA). .
11. Information in the visa application form indicates that the review applicant applied to TRA for a skills assessment, which was subsequently issued on 17 August 2012 with the reference number TRA12/999292905. The Tribunal finds that at the time of application the applicant had applied for a skills assessment for the nominated skilled occupation by the relevant assessing authority and therefore satisfies the requirements of cl.485.214.

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

12. Clause 485.221 requires that at the time of decision the applicant’s skills for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation (cl.485.221(1)).
13. As stated above, the relevant assessing authority in this case is TRA. On 11 September 2013, the Tribunal received a copy of a positive assessment letter from TRA dated 28 February 2013 with reference number TRA12/999295009 in relation to the review applicant’s skills as a Carpenter – 331212 for the purposes of migration. The assessment was verified with TRA by the Tribunal. The Tribunal finds that the applicant’s skills have been assessed as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore satisfies the requirements of cl.485.221(1).

How and where was the qualification obtained?

14. If the assessment was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must have been obtained as a result of studying a registered course (cl.485.221(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).
15. The Tribunal has had regard to the information in the visa application form, departmental movement records and a copy of the relevant Confirmation of Enrolment downloaded from the PRISMS database with respect to the Certificate IV in Building and Construction course undertaken by the review applicant. On the evidence before the Tribunal, the Tribunal finds that the skills assessment was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa. Information in the relevant Confirmations of Enrolment downloaded from the PRISMS database demonstrates to the Tribunal that the Australian qualification was obtained as a result of studying a registered course. The Tribunal finds that the applicant therefore satisfies the requirements of cl.485.221(2).
16. It follows that the applicant meets the requirements of cl.485.221.
17. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.214 and 485.221 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.
18. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.214 and 485.221 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

19. 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.485.214 of Schedule 2 to the Regulations; and
    • cl.485.221 of Schedule 2 to the Regulations.
      

Jennifer Beard
Member