Maan (Migration)

[2018] AATA 1450

Maan (Migration) [2018] AATA 1450 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maninder Pal Singh Maan

CASE NUMBER:  1707670

DIBP REFERENCE(S):  BCC2017/604963

MEMBER:Amanda Mendes Da Costa

DATE:8 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 May 2018 at 10:12am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream –Specified skilled occupation – Analyst Programmer ANZCO 261311 – Did not apply for a skilled assessment with a relevant testing authority – Decision affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15I, 2.26B Schedule 2 cls 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 6 April 2017 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 14 February 2017. 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.485.223 of Schedule 2 to the Regulations because when the application was made, it was not accompanied by evidence that the applicant had applied for an assessment of his skills for his nominated skilled occupation by a relevant testing authority.

4. The applicant appeared before the Tribunal on 9 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.223 of Schedule 2 to the Regulations. Those criteria is 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?

8. 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’.

9. ‘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). The relevant instrument is Legislative Instrument IMMI 16/059.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Analyst Programmer ANZCO 261311 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Australian Computer Society.

11. The Tribunal notes that when he lodged the visa application he declared on the form that he had not applied for a skills assessment with a relevant authority in his nominated skilled occupation of Analyst Programmer ANZCO 261311.

12. In his oral evidence, Mr Maan told the Tribunal that when he lodged the visa application, he did not use the services of a migration agent.  He explained that the subclass 485 visa had two streams, namely a Graduate Work and a Post-Study Work stream.  The applicant said he selected the wrong stream of Graduate Work rather than selecting the Post-Study Work stream.  As a result of this his visa application was refused because his application was not accompanied by evidence that he had applied for a skills assessment of his nominated skilled occupation by a relevant testing authority.    

13. 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.

14. 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

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

    Amanda Mendes Da Costa
    Member