Okhapkin (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, subclass 485, Graduate Work stream, against the decision to refuse his application. The applicant nominated 'Software Engineer' as his skilled occupation. The decision under review was affirmed by the Tribunal.

The primary legal issues before the Tribunal were to determine the applicant's nominated skilled occupation and, crucially, whether the visa application was accompanied by evidence that the applicant had applied for a skills assessment for that nominated occupation by the relevant assessing authority, the Australian Computer Society. The Tribunal was required to consider the specific requirements of the Graduate Work stream of the subclass 485 visa, which mandated the provision of evidence of a suitable skills assessment or a booked skills assessment at the time of application.

The Tribunal found that the applicant had nominated 'Software Engineer' as his occupation. However, in response to the question on the visa application regarding whether he had applied for a skills assessment, the applicant answered "No" and did not provide any accompanying evidence of such an application. The applicant's evidence was that he had not applied for the skills assessment at the time of lodging his visa application because he had not yet received his university transcripts, which were necessary for the assessment. He stated he only received the transcripts shortly before the Department's refusal and applied for the skills assessment thereafter. The Tribunal noted that there was no discretion to overlook the unmet requirement of providing evidence of a skills assessment application at the time of lodging the visa. Furthermore, the Tribunal observed that the skills assessment ultimately obtained by the applicant was for a different occupation, 'Software and Application Programmer', which was not the nominated occupation and not a specified skilled occupation under the relevant instrument.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, finding that the applicant had failed to meet the eligibility criteria for the visa.