Radadia (Migration)

[2018] AATA 5283

Radadia (Migration) [2018] AATA 5283 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parth Bharatbhai Radadia

CASE NUMBER:  1826378

DIBP REFERENCE(S):  BCC2018/2840926

MEMBER:Sheridan Lee

DATE:21 November 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 21 November 2018 at 5:31pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – assessment of skills for nominated occupation – Software Engineer – claimed to have applied for the wrong stream ­– Post-Study Work stream – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 46, 65
Migration Regulations 1994 (Cth), Schedule 1, item 1229; 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 21 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 applied for the visa on 30 July 2018. 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).

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 he had applied for an assessment his skills for the nominated occupation by a relevant assessing authority.

4. The applicant appeared before the Tribunal on 21 November 2011 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. He completed an application form nominating the Graduate Work stream. To meet the requirements of the Graduate Work stream, cl. 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. This criterion is not a requirement of the Post-Study Work stream.

7. An application for a visa must be made for a particular class and only valid applications can be considered by the Minister. The requirements for a valid application are specified in s.46 of the Act and relevantly include satisfying the requirements prescribed in the Regulations and payment of any required fees or charges.

8. To make a valid visa application for a subclass 485 visa, item 1229(3)(j) in Schedule 1 to the Regulations requires an applicant to nominate only one stream to which the application relates.

9. At the hearing, the applicant gave evidence that he had applied for the visa on the last day before his previous visa expired. He was unaware there were two alternate streams within the subclass 485 visa at the time he completed and submitted the form.

10. When the applicant received notification that his visa had been refused, he went to a lawyer who told him there are two visa streams and he applied for the wrong stream. The applicant did not notify the Department he had applied for the wrong stream prior to the delegate reaching a decision, because he was himself unaware until he sought legal advice.

11. The Tribunal acknowledges that if the applicant intended to apply for the Post-Study Work stream, substantially complied with the visa application form and met the Schedule 1 requirements for that stream, it may be open for it to assess the application against the intended stream. However, the Tribunal does not consider this to be the case here. The applicant cannot have held an intention to select a particular stream if he was unaware of its existence.

12. The Tribunal has before it a copy of the applicant’s visa application form for the Graduate Work stream, on which the applicant nominated the occupation of Software Engineer. Further, the applicant answered ‘No’ to the following question:

    Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?

13. In the section titled ‘applicant skills assessment’, the form states:

    IMPORTANT NOTE:

    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 lodge 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.

14. Upon lodging the application form, the applicant was sent confirmation that he had applied for a Temporary Graduate (Graduate Work) (Subclass 485) visa. At no time through the processing of his application by the Department did he express intent to apply in the alternate stream. It was only once the applicant became aware that he failed to meet the relevant criteria for the Graduate Work stream that he understood he should have selected the Post-Graduate Work stream.

15. While the Tribunal accepts that the applicant failed to appreciate what was required for the subclass 485 visa application, this does not impute intent to select the correct stream. The applicant selected the Graduate Work stream, and item 1229(3)(j) in Schedule 1 to the Regulations requires an applicant to nominate only one stream to which the application relates.

16. As the visa application 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.

17. 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

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

    Sheridan Lee
    Member