KARIYAWASAM (Migration)

[2018] AATA 2805

KARIYAWASAM (Migration) [2018] AATA 2805 (22 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dewarakottage Upekha Ihan KARIYAWASAM
Mrs Heepitiye Nayomi JAYATISSA

CASE NUMBER:  1704369

DIBP REFERENCE(S):  BCC2016/4274228

MEMBER:Ian Berry

DATE:22 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 22 June 2018 at 10:40am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Computer Network and Systems Engineer – Requirement for evidence to be provided of skills assessment – Incorrect stream nominated – Evidence of skills assessment not provided – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, 2.26B, 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 Immigration on 2 March 2017 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (Act).

2. The visa applicant (Mr Kariyawasam) applied for the visa on 18 December 2016. The delegate refused to grant the visa as Mr Kariyawasam did not satisfy clause 485.223 of Schedule 2 to the Migration Regulations 1994 (Regulations) because when the application was made, it was not accompanied by evidence that Mr Kariyawasam had applied for an assessment of his skills for his nominated skilled occupation by a relevant testing authority.

3. The applicants appeared before the Tribunal on 24 April 2018 to give evidence and present arguments. The Tribunal received oral evidence from Mr Kariyawasam and his wife Mrs Jayatissa.

4. The applicants were represented in relation to the review by their 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 issue in the present case is Mr Kariyawasam satisfying cl. 485.223 of Schedule 2 to the Regulations, a primary criterion for a Subclass 485 visa in the Graduate Work stream. That criteria concerns Mr Kariyawasam’s skills in relation to his nominated skilled occupation.

   DECISION

7. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that Mr Kariyawasam had applied for an assessment of his 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 have been available – for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation.

9. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under regulation 2.26 B of the regulations (regulation 1.03). The relevant instrument is Legislative Instrument IMMI 16/059.

10. On the evidence before the Tribunal, Mr Kariyawasam nominated the occupation of Computer Network and Systems Engineer ANZSCO 263111 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Computer Society.

11. The Tribunal noted that when Mr Kariyawasam lodged the visa application, he declared he had not applied for a skills assessment with a relevant authority in his nominated skilled occupation of Computer Network and Systems Engineer.

12. Mr Kariyawasam, when giving evidence, advised the Tribunal of selecting the wrong stream of Graduate Work rather than selecting the Post-Study Work stream.

13. The result was for Mr Kariyawasam’s refusal of his visa application because it was not accompanied by evidence that he had applied for a skills assessment of his nominated skilled occupation by a relevant testing authority.

14. The Tribunal is satisfied that the visa application was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority; therefore, Mr Kariyawasam does not satisfy the requirements of clause 485.223.

15. It is on that finding, the Tribunal finds that Mr Kariyawasam does not satisfy the criteria for the grant of a 485 visa. Therefore, the decision must be affirmed.

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

    Ian Berry
    Member