Subhan (Migration)

[2019] AATA 6084

Subhan (Migration) [2019] AATA 6084 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdus Subhan

CASE NUMBER:  1915150

DIBP REFERENCE(S):  BCC2019/1570834

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 December 2019 at 11:18 am (VIC time)

DATE OF WRITTEN RECORD:                2 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 02 January 2020 at 12:54pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment – application accompanied by evidence – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 May 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 December 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Subhan, you told the Tribunal you have been here for some four years and you lodged this Temporary Graduate Subclass 485 visa application on 28 March 2019.  Your application was refused on 28 May 2019 because the delegate found you had not met a requirement for the grant of the visa.  You appealed that decision to be reviewed by this Tribunal.  With your application you included a copy of that primary decision, which you say you have read and understood, and it would appear that you do.

4. I read from that decision you provided, it says: I have assessed the application and the reasons for my decision are detailed below. A valid application for Temporary Graduate Work visa has been made by the applicant. A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Regulations are satisfied. 485.233 has not been met by the applicant on the date I made my decision. 485.223 states: ‘When the 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.’ On 28 March, the applicant lodged an application for Temporary Graduate Work Skilled visa, in the application they declared they have not applied for the skills assessment for their nominated occupation. It is a mandatory requirement that when the application was made, it is accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated occupation by the relevant assessing authority. As the applicant has not provided evidence of having applied for a skills assessment prior to lodging the application, the applicant does not satisfy 485.223.

5. So you come here today and I ask you  what is your expectation of the Tribunal? and you say, ‘Well, that is not the visa that I meant to apply for.  I meant to apply for a visa that did not require me to provide a skills assessment.’  As I have explained to you, the role of the Tribunal is to review a decision that was made to refuse you the application for the visa that you applied for.  In this case, that was a Temporary Graduate Class VC Graduate Work Subclass 485 visa.  To be eligible for that visa, you must have satisfied 485.223, which says - as already stated - that when the application was made, it was accompanied by evidence you had applied for an assessment of the your skills for the nominated occupation by a relevant assessing authority.

6. You did not provide such an assessment.  It is your evidence that you have not attained such an assessment.  And so the Tribunal finds you do not satisfy 485.223 and the criteria for the grant of a Temporary Graduate stream visa are therefore not met.  As you do not meet 485.223 and are not eligible for a visa, it is the decision of this Tribunal to affirm the decision under review. 

   DECISION

7. The Tribunal affirms the decision under review.

   Tim Connellan
   Member