Tompoulidis (Migration)

[2017] AATA 432

Tompoulidis (Migration) [2017] AATA 432 (22 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alexandros Tompoulidis

CASE NUMBER:  1701076

DIBP REFERENCE(S):  BCC2016/3898173

MEMBER:Miriam Holmes

DATE:22 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2017 at 4:37pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Skills assessment – Graduate Work stream – Carpenter – Trades Recognition Australia – Misunderstood process – No skills assessment provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.223, r 1.03, r 1.15I, IMMI 16/059

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 4 January 2017 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 21 November 2016. 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). The primary criteria must be satisfied by the applicant.

3. The delegate refused the visa because the applicant did not satisfy cl.485.223 of Schedule 2 to the Regulations because the delegate was not satisfied 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’.

4. The applicant appeared before the Tribunal by teleconference on 20 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Andrianova, the applicant’s wife. 

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. This criterion is concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets this requirement.

   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. On the evidence before the Tribunal, the applicant nominated the occupation of carpenter which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA (Trades Recognition Australia).

10. The Tribunal made the following findings based on the applicant’s oral evidence, the delegate’s decision record provided by the applicant, the written submissions provided to the Tribunal and the visa application:

    ·On 21 November 2016 the applicant made an application for a Skilled (Provisional) (Class VC) (subclass 485) visa.

    ·In the visa application form the applicant answered “no” to the question “have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?”

    ·The applicant did not provide any further information to the Department at the time the visa application was lodged, or shortly thereafter, in relation to a skills assessment.  

    ·The applicant did not make an application for a skills assessment from TRA prior to 21 November 2016.

    ·The applicant made an application to the TRA for a skills assessment on 20 January 2016, after the visa application had been refused.

11. In light of the findings above, the Tribunal is not satisfied that the visa application, when made, was accompanied by evidence that the applicant had applied for a skills assessment for the nominated occupation by the relevant assessing authority.

12. In written submissions to the Tribunal and in oral evidence to the Tribunal, the applicant and his partner explained that they received advice that they could lodge the visa application without the skills assessment and that the Department would send a letter and request the skills assessment after the visa application was made. The applicant gave evidence that he and his wife rang TRA and the Department several times prior to 21 November 2016 seeking advice about the process of applying for a skills assessment. He asked the TRA about what he needed to do and what documents did he need to provide to obtain a skills assessment. The applicant stated that he told the TRA that he was running out of time to apply for the sc485 visa, and he was told by the TRA that he can apply for the visa and can apply later to the TRA for the skills assessment. He stated that he was also advised that he can provide the TRA assessment to the Department after he lodged the visa application. He said that he did not apply to the TRA prior to lodging his visa application as he was not ready to apply to the TRA with the relevant evidence. The applicant’s partner also told the Tribunal that she rang the Department about the applicant’s situation and they advised her that the applicant could lodge the visa application and then the Department would send a letter requesting the missing evidence in support of the application. Based on this Department advice they were in no hurry to lodge the skills assessment application. They understood they had time to make the TRA application. The applicant’s partner stated that she may have misunderstood the information or been given the wrong information from the Department. The applicant agreed with his partner’s evidence.

13. As discussed at the hearing, an application for a sc485 visa application can be made but it must be accompanied by evidence that the applicant has applied for a skills assessment. The Department does allow time after the lodgement of the visa application for the person to receive the skills assessment and to provide it to the Department. The Tribunal has no discretion to waive the requirement in cl.485.223 due to advice given by the TRA or the Department or due to any misunderstanding by an applicant.

14. 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.

    DECISION

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

    Miriam Holmes
    Senior Member