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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. In his oral submissions, the applicant’s representative reiterated that the applicant submitted notification of incorrect answers form to the Tribunal stating that he made a mistake in the visa application form when he applied under the Graduate Work stream and that the correct answer is that he wanted to apply under the Post-Study Work stream. He further submitted that the Tribunal has the power to assess the application under the correct stream. (Being the Post-Study Work stream)

16. For the reasons stated above, the Tribunal is satisfied that the applicant, when the application was lodged with the Department, applied for a Subclass 485 visa under the Graduate Work stream and not under the Post-Study Work stream.

17. The Tribunal accepts the applicant’s claim that, when he applied for the Subclass 485 visa, he did not understand the requirements for each of the two streams or that he was applying for the visa in the incorrect stream. The Tribunal acknowledges that the wording of the two streams is confusing, especially when language difficulties are factored in. However, not understanding legal requirements is not the same as making an unintentional selection error on the application form.

    Is it possible to change the nominated Graduate Work stream to the Post-Study Work stream?

18. The question in the current review application is whether the applicant can change her application for a Subclass 485 visa from ‘Graduate Work stream’ to ‘Post-Study Work stream’.

19. Pursuant to item 1229(3)(j) of Schedule 1 to the Regulations, an applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa must nominate only one stream to which the application relates.

20. In considering this issue, the Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3): document ID VM-2196 ‘Schedule 2 visa 485’. Under the heading ‘Policy Intent’ it is stated that:

    The primary VC-485 applicant must choose to apply for one of its two streams:

    ·Graduate Work stream

    ·Post-Study Work stream.

    Applicants cannot change the stream they have selected after their application has been made.

21. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakala v Minister for Immigration [2006] FMCA 1209, Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.

22. On the plain reading of item 1229(3)(j) and the policy intention stated in the relevant parts of PAM3, the Tribunal is not satisfied that an applicant for a Subclass 485 visa is able to change the stream they have selected after their application has been made.

23. This was confirmed in Singh v MICMSMA [2020] FCA 774 which held that the Minister (or the Tribunal on review) had no power to grant the applicant a Subclass 485 visa in the Post-Study Work stream in circumstances where the application made was in the Graduate Work stream.

24. It follows that an applicant cannot change the stream they have applied in once their application has been made and the Tribunal cannot consider any stream other than the one applied in.[2]

    [2] The Explanatory Statement to the amending regulations that introduced the two streams in Subclass 485 said the intention was to ensure that applicants are only assessed against the criteria specific to the stream that was selected: Explanatory Statement to SLI 2013, No 33 at p.8.

25. In the present review application, the Tribunal found that the applicant, when he lodged the application with the Department, applied for a Subclass 485 visa under the Graduate Work stream. It was not until the applicant received primary decision that he realised that he had applied under the ‘wrong’ stream.

    Does the Tribunal have power to consider whether the applicant satisfies criteria for the visa grant in the Post-Study Work stream?

26. In Singh’s case, Rangiah J concluded at [68] that:

    The Tribunal only has authority to review the decision made by the Minister, and it has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister.

27. His Honour referred to the statement made by Finkelstein J in Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 and subsequently endorsed by Merkel J in Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435:

    The Tribunal is in no better position than the Minister as regards a decision under review. It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision. In addition, for the purposes of its review, the tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision. But the tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker.

28. His Honour concluded at [69] that:

    The Minister could not have granted a visa in the Post-Study Work stream as no application had been made for such a visa.

29. Relying on the above cited Federal Court judgment, the Tribunal finds that it does not have power to consider whether the applicant satisfies criteria for the visa grant in the Post-Study Work stream.

30. The Tribunal is mindful of the reasons for consent remittal endorsed by the Court in BRG368/2017 and SYG3039/2016. In each matter it was noted that the Tribunal committed jurisdictional error in finding that it was confined to considering the applicant’s application for a Subclass 485 visa only against the stream nominated in the visa application (the Graduate Work stream), in circumstances where the applicant substantially complied with the visa application form for the intended stream (the Post-Study Work stream).

31. However, both matters were remitted by consent prior to the decision in Singh’s case which the Tribunal is bound to follow.

    Had the applicant applied for a relevant skills assessment?

32. 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 their skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

33. ‘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).

34. On the evidence before the Tribunal, the applicant nominated the occupation of a Life Scientist which is a specified skilled occupation.

35. In the visa application form, the applicant 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.

36. 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 Tribunal is not satisfied that the applicant satisfies the requirements of cl 485.223(1).

37. 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

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

    Antonio Dronjic
    Member

    
    

    Attachment 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.