Okhapkin (Migration)

[2019] AATA 441

Okhapkin (Migration) [2019] AATA 441 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Igor Okhapkin

CASE NUMBER:  1825593

DIBP REFERENCE(S):  BCC2018/2800879

MEMBER:Susan Trotter

DATE:6 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 06 March 2019 at 7:36am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – no evidence of skills assessment – Software Engineer – Australian Computer Society assessing authority – date of application for skills assessment provided 21 days late – decision under review affirmed

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

CASES
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523

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, Citizenship and Multicultural Affairs (the Minister) on 16 August 2018 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 is a 26 year old citizen of the Ukraine. He first arrived in Australia in July 2008 as the holder of a student visa, and has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 26 July 2018.

3. The delegate refused to grant the visa on the basis that the visa application had not been accompanied by evidence that the applicant had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority, as required.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 3 September 2018.

5. The applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments.

6. The Tribunal allowed until 18 February 2019 after the hearing for the applicant to provide evidence of when he gave the Department evidence of having applied for a skills assessment.

7. On 14 February 2019, the applicant provided a receipt for his application for a skills assessment dated 16 August 2018.

8. On 18 February 2019, the Tribunal wrote to the applicant inviting him to provide evidence of when he gave the Department evidence of having applied for a skills assessment, by 26 February 2019.

9. On 20 February 2019, the applicant emailed the Tribunal advising that the Department would not accept evidence of the skill check application because it had already made the refusal decision and that it was unable to do anything further with the electronic application, including uploading further documents. The applicant also provided an email dated 16 August 2018 to the Department attaching the receipt for the skills assessment.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    ISSUES

11. 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 (the Regulations).

12. Paragraph 1229(3)(j) of Schedule 1 to the Regulations provides that “An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa must nominate only one stream to which the application relates.” The two streams are the Graduate Work stream and the Post-Study Work stream.

13. The applicant specified the Graduate Work stream when making his application.

14. Clause 485.223 is one of the criteria that needs to be satisfied in the Graduate Work steam. It 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’.

15. It follows that the issues to be determined by the Tribunal are:

    (a)  What was the nominated skilled occupation in the visa application? And

    (b)  Was the visa application accompanied by evidence that the applicant had applied for an assessment of his skills for that nominated occupation by the relevant assessing authority?

    CONSIDERATION

    Issue 1 - What was the nominated skilled occupation in the visa application?

16. At page 11 of the visa application, the applicant specified the nominated occupation as ‘Software Engineer’, a specified skilled occupation in the relevant instrument, IMMI 18/051.

    Issue 2 - Was the visa application accompanied by evidence that the applicant had applied for an assessment of his skills for that nominated occupation by the relevant assessing authority?

17. Pursuant to r.2.26B of the Regulations and the relevant instrument in force at the time of the visa application, IMMI 18/051, the relevant assessing authority for the occupation of Software Engineer is the Australian Computer Society.

18. At the hearing, the applicant told the Tribunal that his understanding is that the reason the delegate has refused the application is because he did not provide all of the documents at the time of his application.

19. The Tribunal discussed with the applicant at hearing the various statements in the application form for the visa in relation to a skills assessment including as follows:

    To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

    …

    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 lodged 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.

20. In the visa application, in response to the question “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?”, the applicant responded “No”. Further, the applicant did not provide evidence of having applied for a skills assessment with the visa application.

21. The applicant’s evidence at hearing was that he had not, at the time of the visa application, applied for a skills assessment as he was unable to because the transcripts from the university had not arrived.

22. The applicant told the Tribunal that the student visa for the winter semester of study is shown on the government website as ending on 30 August; however, his student visa was ending on 30 July and his graduation day was 25 July so he only had five days to apply for the visa. By that time he had not received all of the transcripts, which stated all of the past subjects and all of the information to be provided for the skills assessment, from the university. He told the Tribunal he was pretty nervous about otherwise having to leave the country and his parents advised him to apply for the visa when he did. He applied for the skills assessment on the second day after receiving the transcripts, which was the day of the refusal by the Department.

23. The Tribunal discussed with the applicant that there was no discretion that could be taken into account and that the requirement is that the visa application was accompanied by evidence of having applied for the skills assessment.

24. As regards the requirements of cl.485.223 for the Graduate Work stream, the applicant therefore concedes that he did not provide evidence of having applied for the necessary skills assessment at the time of the visa application. His email of 20 February 2019 provided after the hearing states that he called the Department on the date of the refusal with evidence of having applied for the skills assessment (a receipt/tax invoice dated 16 August 2018) but the Department refused to accept the evidence as it had already made its decision. However, he has also provided an email showing he sent the receipt for the skills assessment application to the Department by email on 16 August 2018 in any event.

25. The date of the visa application was 26 July 2018. The Tribunal does not consider that evidence provided to the Department on 16 August 2018, 21 days after the visa application, and after the delegate’s refusal decision, can be considered as having ‘accompanied’ the application as required. In this regard, the Tribunal had regard to the case of Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a Subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application is provided. In that case, Burchardt J held that a 29 day gap was too great.

26. Therefore the visa application, when made, was not accompanied by evidence of the applicant having applied for a skills assessment for the nominated skilled occupation by a relevant assessing authority such that the applicant does not satisfy cl.485.223 as required for the Graduate Work stream. There is no discretion for this requirement to be disregarded.

    Conclusion

27. The Tribunal therefore 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.

    OTHER MATTERS

28. Given the Department’s records that the applicant held a student visa in Australia granted on the basis of an application made prior to 5 November 2011, as confirmed by the applicant, pursuant to item 1229(3)(l) of Schedule 1 to the Regulations, his application is not able to be considered in the Post-Study Work stream and can only be assessed against the Graduate Work stream criteria.

29. The Tribunal acknowledges the applicant’s position of having lived and studied in Australia for many years and the difficulties he had timing wise with applying for the visa. However, as already noted, the Tribunal has no discretion to disregard cl.485.223, which the Tribunal has found is not met. The Tribunal also observes that the skills assessment ultimately obtained by the applicant dated 3 September 2018 was for the occupation of Software and Application Programmer, which is not the occupation nominated by the applicant in the visa application, nor is it a specified skilled occupation in the relevant instrument, IMMI 18/051.

    DECISION

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

    Susan Trotter
    Member