Masilamani (Migration)

The Administrative Appeals Tribunal considered an appeal by an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The dispute centred on whether the applicant met the primary criteria for this visa, specifically those relating to skills assessment for their nominated occupation.

The Tribunal was required to determine if the applicant had satisfied the requirements of clauses 485.223 and 485.224 of Schedule 2 to the Regulations. These clauses concern the applicant's skills in relation to their nominated skilled occupation and mandate that the visa application, when lodged, must be accompanied by evidence of an application for a skills assessment by a relevant assessing authority. The nominated occupation was Physicist (Medical Physicist only) ANZSCO 234914, and the relevant assessing authority was The Australasian College of Physical Scientists & Engineers in Medicine (ACPSEM).

The Tribunal reasoned that while the applicant had lodged an application for a skills assessment with ACPSEM on 8 December 2017, which was acknowledged by the authority, this assessment was not finalised until after the visa application was lodged. The ultimate outcome of the assessment was negative, and an appeal against this assessment was also determined after the visa application's lodgement. Applying a measure of flexibility to the phrase "accompanied by," as permitted by judicial interpretation, the Tribunal found that the application for skills assessment was indeed provided with the visa application in December 2017. However, the core issue remained that the skills assessment itself was not finalised at the time of the visa application.

Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa. As this was the only relevant subclass in question, the Tribunal affirmed the decision not to grant the visa.