Lizarazo Ocampo (Migration)

[2023] AATA 4277

Lizarazo Ocampo (Migration) [2023] AATA 4277 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Jaime Lizarazo Ocampo

CASE NUMBER:  2115000

HOME AFFAIRS REFERENCE(S):          BCC2020/1126065

MEMBER:Mary Sheargold

DATE:13 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 13 December 2023 at 11:20am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – occupation of Accountant (General) – skills assessment – pre-requisite study requirements – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.223, 485.224; rr 1.03, 1.15, 2.26

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 7 October 2021 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 12 March 2020. Visa Class VC contains Subclass 485. 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 he could not provide a positive skills assessment for his nominated occupation of Accountant (General), ANZSCO 221111.

4. The applicant appeared before the Tribunal by MS Teams video link on 3 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

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 cls 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. Neither of these requirements apply if the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 12 March 2020. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224.

   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. Prior to the hearing, the applicant provided the Tribunal with submissions and evidence including copies of email correspondence with the assessing authority, the Institute of Public Accountants, copies of his previous visas, copies of his academic records both from Australia and Colombia, and a copy of the letter of offer and acceptance agreement from Melbourne Polytechnic for his Bachelor of Business course.

10. At the hearing, the applicant explained that he was not able to obtain a positive skills assessment because the occupation he nominated for this visa application, Accountant, was not sufficiently evidenced by his Bachelor of Business studies completed in Australia.  He explained that on a second review by the Institute of Public Accountants, who previously refused to approve his skills assessment, he was found to have met 4 out of the 5 pre-requisite study requirements for approval.  However, without the fifth one, he could not obtain the positive outcome.

11. The applicant explained that he has been in Australia since 23 October 2011, and that when he first arrived, he spoke no English at all and decided to come here to advance his English studies.  His first student visa was granted on 11 October 2011 and as such, he is barred from making this application in the Post-Study Work stream because he held his first student visa prior to 5 November 2011. He has married and divorced in the time he has been living in Australia, and was the secondary holder on his ex-wife’s Subclass 457 visa.  He has not studied continuously since his arrival in Australia.

12. The applicant also discussed with the Tribunal the close relationship he has with his Australian citizen cousins, noting that one of his cousins has recently been admitted to practice as a lawyer in Australia and has supported him in the process of applying to the Tribunal while being sure not to provide him with legal advice.  He told the Tribunal that his cousin has recommended he obtain legal advice regarding his next steps should the delegate’s decision be affirmed.

13. Unfortunately, the applicant concedes that he does not have the skills assessment needed to meet the requirement of cl 485.224(1), and the Tribunal must find that he does not meet that requirement.

14. It follows that the applicant does not meet the requirements of cl 485.224.

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.

    Mary Sheargold
    Member