Davey (Migration) - [2020] AATA 3178

Davey (Migration) [2020] AATA 3178 (8 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Darren Paul Davey
Ms Kimberley Anne Reay
CASE NUMBER:  1910787
HOME AFFAIRS REFERENCE(S):          BCC2019/1001720
MEMBER:Nicola Findson
DATE:8 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 08 June 2020 at 1:56pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –Post-Study Work stream – Australian study requirement not met – application was not accompanied by a skills assessment –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 54, 65, 349
Migration Regulations 1994, rr 1.03, 1.15, 2.26, Schedule 2, cls 485.224, 485.223, 485.231, 485.311
CASES
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shrestha v MHA [2019] FCA 1843
Shi v Migration Agents Registration Authority [2008] HCA 31
Vishnumolakakala 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 12 April 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 27 February 2019. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams.
The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant held a specified qualification that satisfied the Australian study requirement.
The applicants appeared before the Tribunal on 8 October 2019, to give evidence and present arguments.
The applicants were represented in relation to the review by Counsel, also a registered migration agent, Mr Lorenzo Boccabella.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In this case, the applicants specified the Post-Study Work stream when making their visa application. A criterion for the Post-Study Work stream includes cl.485.231 of Schedule 2 to the Regulations. This clause requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.
On the day of the scheduled hearing, the Tribunal received a pre-hearing written submission from Mr Boccabella. It was submitted, among other things, that a mistake had been made by the applicants’ migration…

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

Case: [2020] AATA 3178
Decision Date: 8 June 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 Temporary Graduate visa, Post-Study Work stream. The applicants sought review of a decision not to grant them this visa.

The primary legal issue before the Tribunal was whether the applicants had met the criteria for the Post-Study Work stream, particularly the Australian study requirement. A secondary issue arose from submissions made by the applicants' representative, suggesting that the application was mistakenly lodged for the Post-Study Work stream when the intention was to apply for the Graduate Work stream, and whether the Tribunal should consider this error and subsequent evidence in determining the correct visa stream.

The Tribunal considered a statutory declaration from the applicants' migration agent admitting an error in selecting the Post-Study Work stream instead of the Graduate Work stream. The applicants also provided a statement confirming their intention to apply for the Graduate Work stream, supported by a provisional skills assessment for the occupation of bricklayer. The applicants' representative argued, citing *Shi v Migration Agents Registration Authority* [2008] HCA 31, that the Tribunal, stepping into the shoes of the Minister, should consider all evidence before it at the time of its decision to determine the correct and preferable decision. However, the Tribunal found that the applicants did not meet the requirements of clause 485.231 of Schedule 2 to the Regulations, which pertains to the Australian study requirement for the Post-Study Work stream. Furthermore, the Tribunal noted that the second applicant did not meet the criteria for a Subclass 485 visa as a member of a family unit.

Consequently, the Tribunal affirmed the decisions not to grant the applicants the Skilled (Provisional) (Class VC) visas.

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 In this case, the applicants specified the Post-Study Work stream when making their visa application. A criterion for the Post-Study Work stream includes cl.485.231 of Schedule 2 to the Regulations. This clause requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. On the day of the scheduled hearing, the Tribunal received a pre-hearing written submission from Mr Boccabella. It was submitted, among other things, that a mistake had been made by the applicants’ migration agent when lodging the application. Specifically, the Post Study work stream had inadvertently been applied for rather than the Graduate work stream. It was submitted that, having regard to s.54 of the Act as well as the key information provided by the applicants to the Department, the applicants visa application was for all practical purposes an application for a subclass 485 visa in the Graduate work stream, and not the Post-Study work stream. Additional material accompanied the applicants’ submission. The Tribunal received a statutory declaration sworn on 3 October 2019 by the applicants’ migration agent, Mr John Adams, in which he declares that in acting for the applicant in his subclass 485 visa application, he made an error in clicking on the Post-Study Work stream rather than the Graduate Work stream. Mr Adams declares that the applicant meets the requirements of cl.485.22 of Schedule 2 to the Regulations, being the primary criteria for the Subclass 485 visa in the Graduate Work stream, and that all of the material in the visa application was concerned with satisfying the criteria of the Graduate Work stream. The Tribunal was provided with a statement of the applicant dated 7 October 2019 confirming that his visa application was “centred on and only about the nomination of the occupation of a bricklayer for a visa in the Graduate Work stream”. The Tribunal was also provided with a Trades Recognition Australia provisional Skills Assessment in respect of the applicant for the occupation of Bricklayer dated 11 June 2019. In his written submission, Mr Boccabella submits that in Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi) the High Court unanimously concluded that the Tribunal must also look at the facts and evidence in existence at the time of its decision in order to arrive at the correct and preferable decision, and, that this decision provides a further basis for the Tribunal to find that the visa application was an application for a visa in the Graduate Work stream. He submits that following the reasoning in Shi, the Tribunal “steps into the shoes of the Minister” for the purposes of s.55, and in exercising its power under s.349 of the Act, all material before it becomes part of the visa application. It is contended that the Tribunal now has before it, as part of the visa application, the evidence of a statutory declaration sworn by the applicants migration agent, a “confirmatory nomination” by the applicant, and a Skills Assessment dated 11 June 2019 and completed in respect of the applicant by Trades Recognition Australia.

Decision

Reasons for decision

The Tribunal also finds that the second named applicant does not meet the requirements of cl.485.311, because she is not a member of a family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria. There is no claim or evidence that the second named applicant meets the criteria for the grant of a Subclass 485 visa. DECISION The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.Nicola FindsonMember

Ratio Decidendi

Legal Principle Established

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