1516069 (Migration)

[2016] AATA 3426

1516069 (Migration) [2016] AATA 3426 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Veronica Kittika

CASE NUMBER:  1516069

DIBP REFERENCE(S):  BCC2015/2355888

MEMBER:Glen Cranwell

DATE:8 March 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 08 March 2016 at 10:22am

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 6 November 2015 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 15 August 2015. 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 applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 8 March 2016 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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.485.223 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?

7. 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’.

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. ‘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).

9. On the evidence before the Tribunal, the applicant nominated the occupation of Computer Network and Systems Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Computer Society.

10. Relevantly, the applicant provided the following answers on her visa application form:

    Skills assessment

    Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?

    No.

    …

    Applicant skills assessment

    IMPORTANT NOTE:

    You must provide evidence of a suitable skills assessment for the relevant assessing authority, or evidence that you have booked to undergo a skills assessment with the relevant assessing authority when you lodge this application.

    Failure to do so may result in you being unable to satisfy the requirements for lodging an application or being unable to satisfy the criteria for this visa.

    Nominated Occupation            Computer Network and Systems Engineer

    Name of assessing authority     Australian Computer Society

    Date of Skills Assessment        15 AUG 2015

    Reference/Receipt number

11. The applicant answered “no” to the question whether she had applied for a skills assessment.  Later in the application, she referred to the assessing authority and provided a date of skills assessment, but failed to provide a reference/receipt number.  When considering the totality of the applicant’s answers, the absence of a reference/receipt number combined with the applicant’s initial answer of “no”, leads the Tribunal to find that, when the visa application was made, it was not accompanied by evidence that the applicant had applied for a skills assessment. 

12. On 9 September 2015, the applicant provided the Department with an acknowledgement for lodgement of her skills assessment application with the Australian Computer Society dated 2 September 2015 with reference number 988805.  As this was provided after the application was lodged on 15 August 2015, it cannot be considered as evidence that the applicant satisfied cl.485.223.

13. At the hearing, the applicant stated that she had not applied for a skills assessment at the time the visa application was lodged.  She had intended to, but realised that copies of some documents needed to be certified by a commissioner for declarations.  She did not understand the time of application requirements, and thought she could lodge the evidence afterwards.

14. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.

15. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Glen Cranwell
    Member