Chen (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), brought before the Tribunal. The applicant sought review of a decision to refuse to grant the visa. The Tribunal considered the material before it and concluded that the matter should be remitted for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for the grant of the visa, specifically in light of her location outside Australia at the time the application was finalised and her visa history. The Tribunal was required to determine if clause 485.411 of Schedule 2 of the Regulations, which requires the applicant to be in Australia when the visa is granted, constituted a prescribed criterion for the visa grant.

The Tribunal reasoned that clause 485.411, which falls under the "Circumstances applicable to grant" heading, is not a primary or secondary criterion as defined by section 31(3) of the Act and regulation 2.03(1). Therefore, it is not a prescribed criterion for the grant of the visa, and the Tribunal cannot remit the matter based on satisfaction of this clause. The Tribunal also considered the visa history requirement under clause 485.211, finding that departmental records indicated the applicant had not previously held a Subclass 476 or Subclass 485 visa granted on the basis of meeting the primary criteria.

Consequently, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa for reconsideration. The direction was that the applicant meets clause 485.211 of Schedule 2 to the Regulations, and the Minister was to consider the remaining criteria and determine whether the applicant is in Australia at the time of the grant of the visa.