TCHETVERTAKOV (Migration)

[2019] AATA 859

TCHETVERTAKOV (Migration) [2019] AATA 859 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gueorgui TCHETVERTAKOV

CASE NUMBER:  1616325

HOME AFFAIRS REFERENCE(S):           BCC2016/980455

MEMBER:Sheridan Lee

DATE:7 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 07 March 2019 at 11:31am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Technical Writer – skills assessment – not assessed at time of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.234

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 and Border Protection on 20 September 2016 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 March 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants seeking to satisfy the primary criteria must meet the common criteria, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Technical Writer.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because at the time of application, the applicant’s skills had not been assessed by a relevant assessing authority as suitable for the nominated occupation.

6. The applicant was invited to appear before the Tribunal on 5 February 2019 to give evidence and present arguments. When he did not appear, the Tribunal dismissed his application. Later the same day, the applicant emailed the Tribunal to advise that he responded to the hearing invitation and that he is offshore and unavailable to attend a hearing in person. Upon reviewing the information on the Tribunal’s email server, it was confirmed that the applicant had previously emailed the Tribunal on 28 January 2019 and the email had been quarantined by the anti-virus software and released ten days later. The Tribunal reinstated the applicant’s matter and wrote to him to consult on how he would like to proceed. He was provided with two options: the Tribunal could arrange a telephone hearing or proceed to make a decision on the documentary evidence.

7. On 24 February 2019, the applicant confirmed that he would like the Tribunal to proceed to a decision on the available evidence.

8. For the following reasons, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

10. For this criterion, the relevant class of exempt persons has been specified in IMMI 15/083. In this case, the applicant is not exempt on the basis of either his earnings or occupation.

11. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 16/060. VetAssess is the assessing authority specified for the occupation of Technical Writer.

12. I have before me a copy of the visa application form, on which the applicant declared ‘no’ to the following question:

    Does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa?

13. The applicant has also supplied the Tribunal with a copy of a successful skills assessment for his nominated occupation, issued by VetAssess on 21 February 2017. As outlined, VetAssess is a relevant skills assessment authority for the occupation of Technical Writer. However, the assessment was not complete at the time of the visa application on 8 March 2016.

14. The applicant has made submissions outlining that he was misled by his migration agent as to the requirements for making an application for a Subclass 186 visa. He has further conceded that at the time of application, his skills had not been assessed.

15. I accept that the applicant failed to appreciate what was required to apply for the Subclass 186 visa and relied on the advice of his agent. I further accept that the applicant is dismayed that such a seemingly technical oversight could derail his Subclass 186 visa application, particularly since he subsequently obtained the required assessment of his skills.

16. However, I must find that at the time of application, the applicant did not meet the requirements of either subclause 2 or 3 as he did not have a successful skills assessment and was not exempt from the requirement to have one.

17. The applicable law does not give the Tribunal any power to waive or overlook the need to meet this requirement.

18. In the applicant’s submissions of 28 January 2019, he outlined that since the refusal of his Subclass 186 visa he has left the position with his nominating employer. He further outlined that he was subject to workplace bullying and unfair treatment, resulting in the development of mental health concerns. He provided contact details for his treating Psychiatrist should the Tribunal require any further information. For the reasons outlined above, the applicant did not satisfy the requirements of cl. 186.234, which must be met at the time of application. As such, while it is regrettable that the applicant experienced poor treatment in the workplace, it is not relevant to a determination in this matter. Consequently, it was not appropriate for me to contact applicant’s Psychiatrist for information.

19. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Sheridan Lee
    Member