Bakircioglu (Migration)

[2021] AATA 2571

Bakircioglu (Migration) [2021] AATA 2571 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Deniz Bakircioglu

CASE NUMBER:  2003799

HOME AFFAIRS REFERENCE(S):          BCC2019/6672251

MEMBER:Wan Shum

DATE:31 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2021 at 11:02am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Accountant (General) – skills assessment – CPA Australia – whether before the lodgement of visa application – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.223

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 18 February 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 December 2019. 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 applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Temporary Graduate (Graduate Work) stream.

3. The delegate refused the visa because the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations because the applicant had applied for the skills assessment after making the visa application.

4. The applicant gave evidence and presented arguments at a hearing before the Tribunal on 28 May 2021 by phone using MS Teams.

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 of Schedule 2 to the Regulations.

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’. The issue in the present case is whether the applicant meets this requirement.

8. ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument LIN 19/051.

9. On the evidence before the Tribunal, the applicant nominated the occupation of accountant (general) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is: CPAA; or CAANZ; or IPA.

10. The application form was completed with the following information in the ‘Applicant skills assessment’ section:

    Nominated Occupation               Accountant (General)

    Name of assessing authority        CPA Australia Ltd

    Date of Skills Assessment

    Reference/Receipt number

11. According to the receipt from CPA Australia, the Skills Migration Assessment fee was paid on 30 January 2020. At the hearing, the applicant confirmed that she did not make the application for the skills assessment until after she lodged the visa application. The applicant explained that the academic transcript from Holmes Institute was issued on 12 December 2019 and she had attended the offices that same day to obtain a completion letter. However, she was informed that the completion letter would not be available until the next day, as they were being sent from Melbourne. The applicant said she returned to obtain a copy of the completion letter on 13 December 2019, and that she tried to make a phone call to an agent the next day, which was a Saturday, but no-one answered. She then decided to make the visa application herself as her visa was expiring on 15 December 2019. The applicant said that she understood now that she had to make the application for the skills assessment before lodging the application for the visa, but she did not realise at the time.

12. The Tribunal acknowledges that the applicant made the application by herself and accepts that she was concerned about lodging the visa application before her visa expired. But it cannot, in that it has no power to do so, make allowances for individual circumstances in respect of the requirement that an application has been made to the relevant assessing authority for a skills assessment prior to lodging the visa application.

13. When completing the form, the applicant provided the name of the assessing authority, but did not enter a reference/receipt number. The Tribunal notes that the application form includes the following warning:

    You must provide evidence of a suitable skills assessment from 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.

14. The applicant has confirmed that she did not make the application for the skills assessment until after the visa application was made. The Tribunal finds that the applicant had not booked to undergo a skills assessment prior to lodging the visa application. The Tribunal does not have any power to waive the requirement or exercise any discretion in relation to this criterion.

15. 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 meet the requirements of cl 485.223.

16. Given this finding, the decision under review will be affirmed.

    DECISION

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

    Wan Shum
    Member