Pescadero (Migration)

[2018] AATA 1468

Pescadero (Migration) [2018] AATA 1468 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Geraldo Pescadero
Mrs Clarissa Pescadero
Mr Kiara Pescadero

CASE NUMBER:  1722710

DIBP REFERENCE(S):  BCC2017/2680859

MEMBER:Amanda Mendes Da Costa

DATE:8 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 08 May 2018 at 12:39pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –Relevant skills assessment–  Mistakenly nominated the wrong skilled occupation – Signed Notification of incorrect answers provided – Did not provide an assessment from the relevant assessing authority – Decision affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15l, 2.26B Schedule 2 cl 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 19 September 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 July 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 visas because the first named applicant (the applicant) did not satisfy cl.485.224 of Schedule 2 to the Regulations because the applicant did not provide a Skills Assessment for his nominated skilled occupation.

4. The applicant appeared before the Tribunal on 9 April 2018 to give evidence and present arguments.   

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 cl.485.223 of Schedule 2 to the Regulations. These criteria are 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?

7. 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’.

8. ‘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.

9. When lodging the visa application, the applicant nominated on the form, the occupation of Engineering Technologist ANZSCO Code 233914 which is a specified skilled occupation.  He declared that he had applied to the relevant assessing authority, Engineers Australia, for an assessment of his skills for his nominated occupation.  He also provided a payment receipt from Engineers Australia dated 12 July 2017 as evidence of his application.

10. On 9 September 2017 the applicant provided to the Department a scanned copy of a suitable Skills assessment for the skilled occupation of an Electrical Engineering Draftsperson, ANZCO Code 312311 from Engineers Australia to support his application.

11. The Tribunal notes that the applicant did provide a suitable Skills assessment for the occupation of Electrical Engineering Draftsperson, ANZCO Code 312311 this was not the nominated occupation in his application.

12. In his oral evidence, the applicant told the Tribunal that he had mistakenly nominated the wrong skilled occupation when he lodged his application, and that his actual occupation was an Electrical Engineering Draftsperson ANZCO Code 31211 and that he was not an Engineering Technologist ANZCO Code 233914.

13. The Tribunal notes that on 12 April 2018 the applicant provided the Tribunal with a signed Notification of incorrect answers.  In that document the applicant states that he nominated the wrong skilled occupation in his visa application.

14. The Tribunal is not satisfied that the application was accompanied by evidence that the applicant had applied for a skills assessment for the nominated occupation by the relevant assessing authority. 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.

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.

16. As the applicant does not meet the primary criteria for granting the application, the secondary applicants do not meet cl.485.311

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Amanda Mendes Da Costa
    Member