Chan (Migration) - [2023] AATA 565

Chan (Migration) [2023] AATA 565 (2 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ngo Fung Chan
REPRESENTATIVE:  Mr Mark Sutherland (MARN: 9601025)
CASE NUMBER:  2116517
HOME AFFAIRS REFERENCE(S):          BCC2021/150063
MEMBER:Antonio Dronjic
DATE:2 March 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 02 March 2023 at 2:37pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – applied under the wrong stream – cannot change the stream selected in visa application – no power to grant visa in a different stream – skills assessment – Life Scientist – application not accompanied by requisite evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.223, 485.224
CASES
Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435
Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Singh v MICMSMA [2020] FCA 774
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 22 January 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.
The delegate refused the visa because the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations. The applicant had chosen the Graduate Work stream and answered NO to the question on the visa application form which asked if he had applied to a relevant assessing authority for an assessment of his skills for his nominated skilled occupation.
The applicant applied to this Tribunal for review of the primary decision on 12 November 2021 and with his application submitted a copy of the primary decision record and written submissions.
On 5 May 2022, the applicant’s representative submitted legal submissions and documentary evidence in support of the review application. The list of documents submitted is attached to this decision record and marked as attachment A. On 27 February 2023, the applicant’s representative submitted further legal submissions.
The applicant appeared before the Tribunal on 2 March 2023 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Chan (Migration) [2023] AATA 565
Case: [2023] AATA 565
Decision Date: 2 March 2023

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream, made by Mr Chan. The Administrative Appeals Tribunal (AAT) was required to review the decision to refuse this visa application.

The primary legal issue before the Tribunal was whether the applicant had applied for the visa under the correct stream, and if not, whether the Tribunal had the power to grant the visa under a different stream than that selected in the original application. Specifically, the Tribunal had to determine if the applicant had indeed applied for the Graduate Work stream, as assessed by the delegate, or if he had intended to apply for the Post-Study Work stream, as he later claimed. A further issue was whether the applicant had satisfied the criteria for the chosen stream, including providing a requisite skills assessment.

The Tribunal found that the applicant had explicitly selected the Graduate Work stream in his visa application form and had nominated a skilled occupation as a Life Scientist. Crucially, he had answered "NO" to the question regarding whether he had applied for a skills assessment for that occupation. The applicant's subsequent claim that he intended to apply for the Post-Study Work stream, and that he had made an error in the application form, was not determinative. The Tribunal noted that the Department's acknowledgment letters also clearly indicated the application was for the Graduate Work stream, and the applicant had not raised this issue with the Department prior to the refusal decision. The Tribunal concluded that there was no power to grant the visa under a different stream than that applied for, and as the applicant did not meet the criteria for the Graduate Work stream, the decision under review had to be affirmed.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 item 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 11 March 2020. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224. Did the applicant apply for a Subclass 485 visa under the Graduate Work or the Post-Study Work stream? The starting point for the Tribunal in relation to a review of a Subclass 485 visa refusal is to make a factual finding about which application has been made, that is did the applicant apply for a Subclass 485 visa in the Graduate Work stream or did he apply for a Subclass 485 visa in the Post-Study Work stream. Claims with respect to an applicant’s intention may be relevant to this factual finding, although not necessarily determinative of it.[1][1]Singh v MICMSMA [2020] FCA 774. In his written submissions, the applicant’s representative submitted that the applicant made an error when completing the electronic application form for his subclass 485 visa application. The applicant submitted form 1023 (Notification of incorrect answers) to the Tribunal, signed on 5 May 2022, stating that he intended to apply for a subclass 485 visa in the Post-Study Work stream rather than the Graduate Work stream that was assessed by the delegate when making the decision to refuse his subclass 485 visa application. It was submitted that, as the applicant has now corrected the answers provided on his electronic subclass 485 visa application form to confirm that he is applying for a subclass 485 visa in the Post-Study Work stream, he is not required to meet the requirements of cl 485.223. It was further submitted that the applicant would have been able to satisfy the criteria for the Post-Study Work stream. In his evidence, the applicant confirmed that in his visa application form, he chose to apply for a Subclass 485 visa under the Graduate Work stream. The applicant further stated that in his visa application form, he nominated the skilled occupation of a Life Scientist and answered NO to the question which asked if he had applied to a relevant assessing authority for an assessment of his skills for his nominated skilled occupation. The applicant gave evidence that, both the Department’s visa application acknowledgment letter dated 22 January 2021 and the bridging visa grant letter of the same day clearly stated that the application for a Subclass 485 visa was made under the Graduate Work stream. The applicant stated in his evidence that he did not inform the Department that he applied under the wrong stream prior to receiving the primary decision and that he only realised that he applied for a Subclass 485 visa under the wrong stream after receiving the Department’s decision.

Decision

Reasons for decision

Based on 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 The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Antonio DronjicMemberAttachment A: Document List·Legal submission from Mark Sutherland of Philip Silver & Associates dated 5 May 2022. ·Form 1023 signed by Mr Chan dated 5 May 2022.·AAT President’s direction on ‘Conducting Migration and Refugee Reviews’ dated 1 August 2018.·Magammulla (Migration) [2019] AATA 4609 (8 October 2019) by Tim Connellan.

Ratio Decidendi

Legal Principle Established

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