Bullen (Migration)

[2023] AATA 1009

Bullen (Migration) [2023] AATA 1009 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charles Cholai Bullen

CASE NUMBER:  2206520

HOME AFFAIRS REFERENCE(S):          BCC2021/1581781

MEMBER:Mary Sheargold

DATE:19 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 19 April 2023 at 10:56am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – application for a skills assessment – specified skilled occupation – first student visa held before 2011 – referral for Ministerial Intervention – genuine temporary entrant – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, rr 1.03, 1.15, 2.26; Schedule 2, cls 485.223, 485.224

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 Home Affairs on 27 April 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 August 2021. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visa because the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations because his application was not accompanied by evidence that he had applied for a skills assessment for his nominated skilled occupation of Valuer, ANZSCO 224512.

4. The applicant appeared before the Tribunal by MS Teams video link on 23 March 2023 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 in the Graduate Work stream which include cls 485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. Neither of these requirements apply if the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 14 August 2021. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223(1) 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 reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument LIN 19/051.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Valuer, ANZSCO 224512, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is VETASSESS.

10. The applicant admits that he had not yet applied for a skills assessment at the time he made his visa application.  In a written submission to the Tribunal prior to his hearing, the applicant noted that he made his application during Covid-19 lockdowns in New South Wales, that money was tight, and as a result he relied on advice from friends who had obtained Subclass 485 visas after graduating from university as to what he had to provide to the Department.  At the hearing, the applicant acknowledged that this was an error of judgment.  In his written submission, the applicant states that because no one he discussed his potential Subclass 485 visa application with had mentioned a skills assessment, he had assumed it was an optional document to include.  Again, the applicant admits he now understands this was incorrect. 

11. It is clear that immediately on receiving the delegate’s decision, the applicant took steps to obtain a skills assessment from VETASSESS and indeed received a positive outcome on that assessment.  This is not surprising given the applicant holds a Bachelor level degree in relation to his nominated skilled occupation.  The fact that the applicant holds a Bachelor level degree also begs the question why his application is made in the Graduate stream rather than the Post-Study Work stream.

12. The answer to this question is sadly straightforward: the applicant does not meet the Item 1229(3)(l) of Schedule 1 to the Regulations setting out the criteria for the Post-Study Work stream.  That provision specifies:

    1229(3)(l) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream:

    (i)  must hold a Student Temporary (Class TU) visa that:

    (A)  was granted on the basis of an application made on or after 5 November 2011; and

    (B)  is the first Student Temporary (Class TU) visa that the applicant has held; or

    (ii)  must have held a Student Temporary (Class TU) visa that:

    (A)  was granted on the basis of an application made on or after 5 November 2011; and

    (B)  was the first Student Temporary (Class TU) visa that the applicant had held.

13. In this case, the applicant held his first (and only previous) student visa prior to 5 November 2011.  The applicant has told the Tribunal that he was not able to select the Post-Study Work stream when he made his application because he had to enter the date of his first student visa, and when he did so, his application was placed in the Graduate stream.  The applicant was sent to Cairns for his high schooling from the year 2000 until 2003, and he held a temporary student visa at that time.  The applicant returned to Papua New Guinea on 3 December 2003 after completing high school and did not re-enter Australia until 17 June 2018.

14. However, the requirement in item 1229(3)(l) is strict and there is no flexibility for the Tribunal at review to find that the applicant meets the Schedule 1 criteria for the Post-Study Work stream.

15. The Tribunal accepts the applicant’s submissions that he did not engage a migration agent to assist with his application as he could not afford the fees at the time, and that he relied on the advice of his friends regarding the documents required to make an application.  Because of this advice, he selected ‘no’ to the question of whether he had applied for a skills assessment: his genuine belief was that this was an optional document to upload and was not required in his circumstances.  The need to provide evidence accompanying the visa application to demonstrate that a skills assessment has been applied for is strict.  The Tribunal cannot accept the applicant’s application for a skills assessment lodged after the visa refusal was issued by the Department as a basis to find his application was accompanied by evidence that he had applied for a skills assessment. 

16. 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(1).

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.

    Referral to the Minister pursuant to s.351 of the Act

18. In a written submission received after the hearing, the applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

19. The applicant has considered the Minister’s guidelines relating to this discretionary power, and has made submissions regarding both the exceptional economic, scientific, cultural or other benefit that would result from him being permitted to remain in Australia, as well as the circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation or where the application of relevant legislation leads to an unfair result in this case.

20. To his point regarding the exceptional benefit that would result from him being permitted to remain in Australia, the Tribunal notes the applicant is a property valuer specialising in residential property valuations in Newcastle, Lake Macquarie, the Central Coast and Hunter regions of New South Wales.  The Tribunal accepts the applicant’s submission that there is a known shortage of property valuers willing to live and service non-metropolitan areas.  However, the Tribunal is not persuaded that there is an exceptional benefit – be it economic or other – that would result from the applicant being permitted to remain in Australia.

21. The Tribunal is persuaded, though, that the application of the Schedule 1 criteria for this visa for this applicant leads to an unfair result.  The relevant explanatory statement regarding the basis for limiting the date of a first student visa for applicants in the Post-Study Work stream is about ensuring that applicants for the Subclass 485 visa in that stream are genuine temporary entrants.  In this applicant’s case, it is quite apparent that his 14.5 year gap between completing high school on his first student visa to the date he arrived in Australia again to undertake a Bachelor degree is indicative of an applicant who has a demonstrated history of being a genuine temporary entrant.

22. Moreover, although neither the delegate nor Tribunal has the discretion to consider factors that may demonstrate the applicant’s genuine intent to remain in Australia temporarily when determining if he meets the Schedule 1 criteria for the Post-Study Work stream, it is worth noting he has 2 teenage sons living in Papua New Guinea, and therefore a strong motivation to return home.  He is not an applicant who has held student visa after student visa, amassing certificates, diplomas and degrees, utilising the temporary residence migration scheme to cement a life in Australia.  Given the underlying reasons for introducing a requirement for the Post-Study Work stream only that an applicant have held their first student visa after 5 November 2011 is a desire to ensure only genuine temporary entrants are granted Subclass 485 visas in the Post-Study Work stream, there is merit in a claim that applying the Schedule 1 criteria in item 1229(3)(l) leads to an unfair result for this particular applicant.

23. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Mary Sheargold
    Member