TCHETVERTAKOV (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Direct Entry stream. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.234 of the Migration Regulations 1994 at the time of his visa application. This clause mandates that an applicant for the Direct Entry stream must either be an exempt person or have had their skills assessed as suitable for their nominated occupation by a specified assessing authority, along with meeting certain employment requirements.

The Tribunal found that the applicant was not an exempt person. While the applicant had subsequently obtained a successful skills assessment from VetAssess for his nominated occupation of Technical Writer, this assessment was not completed at the time of his visa application on 8 March 2016. The applicant conceded this fact and submitted that he had relied on incorrect advice from his migration agent. Despite accepting the applicant's explanation for the oversight and acknowledging his subsequent distress, the Tribunal held that the law did not permit it to waive or overlook the requirement to have a valid skills assessment at the time of application. The applicant's subsequent employment issues and mental health concerns were also deemed irrelevant to this determination.

Consequently, as the applicant failed to satisfy the mandatory requirements of clause 186.234 at the time of application, the Tribunal affirmed the decision not to grant the visa.