Adamec (Migration)

[2021] AATA 2321

Adamec (Migration) [2021] AATA 2321 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lukas Adamec

CASE NUMBER:  2000209

HOME AFFAIRS REFERENCE(S):          BCC2019/3473127

MEMBER:Antonio Dronjic

DATE:4 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 04 May 2021 at 3:07pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – negative outcome from TRA – no positive skills assessment at time of hearing –decision under review affirmed

LEGISLATION
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 Home Affairs on 17 December 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 July 2019. 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 (Cth) (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 because the applicant did not provide evidence that his skills for the nominated occupation had been assessed as suitable by the relevant assessing authority.

4. The applicant appeared before the Tribunal on 4 May 2021 to give evidence and present arguments. 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 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 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 those requirements.

   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 if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had nominated the occupation of Systems Analyst when making the application. He indicated on the form that on 9 July 2019, he had made an application for a skills assessment to Australian Computer Society (ACS).

10. In his oral evidence, the applicant stated that in August 2019, he received negative outcome from ACS of his skills assessment application. He neither applied for a review of that decision not he lodged a fresh skills assessment application after that.

11. The applicant confirmed in his evidence that, as at the time of the hearing, he does not have positive skills assessment for his nominated occupation.

12. Based on the evidence before it, the Tribunal finds that the skills of the applicant for his nominated skilled occupation have not been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. Therefore the requirements of cl 485.224 are not met.

13. 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

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

    Antonio Dronjic
    Member