Lao (Migration) - [2019] AATA 5587

Lao (Migration) [2019] AATA 5587 (11 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lirashen Lim Lao
CASE NUMBER:  1908516
DIBP REFERENCE(S):  BCC2019/257377
MEMBER:Catherine Carney-Orsborn
DATE:11 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:
·cl.485.223 of Schedule 2 to the Regulations; and
·cl.485.224 of Schedule 2 to the Regulations.

Statement made on 11 December 2019 at 3:53pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment – nominated occupation – ICT Sales Representative – clerical error – ICT Business Analyst – ascertaining the applicant’s intended nominated occupation – positive assessment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.223, 485.224
CASES
Pavuluri v MIBP [2014] FCA 502
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 Immigration on 5 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 29 January 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). 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.485.224(1) of Schedule 2 to the Regulations because she did not provide a skills assessment for the nominated occupation.
The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 cl.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. The issue in the present case is whether the applicant meets those requirements.
Had the applicant applied for a relevant skills assessment?
Clause 485.223 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’.
‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by…

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: Lao (Migration) [2019] AATA 5587
Case: [2019] AATA 5587
Decision Date: 11 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 485 (Temporary Graduate) visa. The dispute centred on whether the applicant had met the criteria relating to their nominated skilled occupation, specifically concerning the requirement for a skills assessment by a relevant assessing authority at the time of application.

The Tribunal was required to determine if the applicant had satisfied clauses 485.223 and 485.224 of Schedule 2 to the Migration Regulations 1994. These clauses mandate that a visa application must be accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority. The core issue was to ascertain the applicant's intended nominated occupation, given an assertion by the applicant that a clerical error had led to the incorrect occupation being listed on the application.

The Tribunal reasoned that while generally the nominated occupation on the application form is determinative, caselaw, including *Pavuluri v MIBP*, suggests that in certain circumstances, the Tribunal may examine other evidence to clarify an applicant's intended nominated occupation. The applicant claimed to have intended to nominate "ICT Sales Representative" but inadvertently selected "ICT Business Analyst" due to a clerical error, as these occupations appeared consecutively in an online dropdown menu. The Tribunal considered that a finding of a clerical error, as opposed to a mistake in advice, could support a conclusion that the nominated occupation was other than as specified. Based on the applicant's explanation and the nature of the alleged error, the Tribunal found that the applicant met the requirements of clauses 485.223 and 485.224.

Consequently, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa for reconsideration by the Minister, with the direction that the applicant had met the specified criteria relating to their nominated skilled occupation.

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 matter should be remitted for reconsideration.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 cl.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. The issue in the present case is whether the applicant meets those requirements.Had the applicant applied for a relevant skills assessment? Clause 485.223 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’. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.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 r.2.26B of the Regulations (r.1.03). The relevant instrument is Legislative Instrument IMMI 18/051. At hearing the applicant stated that she had made an error in her application. She had wanted to put her nominated occupation as ICT Sales Representative however due to a clerical error she had inadvertently hit ICT Business Analyst. She said that as the occupations in the drop down box online are one after the other both starting with ICT it was a clerical error. The Tribunal has considered the caselaw on whether a change can be made to the nominated occupation as set out below.“For example, in Pavuluri the Tribunal expressed the view that, in principle, there may be circumstances in which it could find the nominated occupation on the visa application form to be something other than what was stated, if there was evidence to support a different characterisation of the nominated occupation at the time of the visa application, but found that this was not such a case.[1] While the Court did not reach a concluded view, it appears to have tentatively accepted the Tribunal’s opinion, i.e. that it may be able to examine other evidence or material to clarify or explain precisely which occupation an applicant intended to specify.[2] Tribunal’s opinion, i.e. that it may be able to examine other evidence or material to clarify or explain precisely which occupation an applicant intended to specify.[3] Thus, while not free from doubt, it may be possible to find, as a matter of fact, that the occupation specified in the application form is not (and was not) the nominated occupation. However having regard to the concept of nominating an occupation as a requirement of a valid visa application, and the terms of the application form (‘What is your nominated occupation?’) the circumstances in which this may be open would appear to be narrowly confined. In considering this question, the applicant’s explanation for the mistake would be relevant. Other relevant factors may include the match (or mismatch) between the occupations in question and the applicant’s qualifications and experience, the skills assessment sought, and the relevant assessing authority specified on the application form.[4] It may not necessarily be enough that the applicant ‘made a mistake’ as a result of incorrect advice or lack of legal advice when completing the form.[5] However a finding that the mistake was in the nature of a clerical error may support a conclusion that the nominated occupation was other than as specified in the application form.[6]”[1]Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [21]. In that case the appellant had explained that he had been ill-advised as to the appropriate occupation to nominate for his degree and, relying on s 105, asked the Tribunal to allow him to correct his occupation (from ‘finance manager’ to ‘market research analyst’) as he had made a mistake. The Tribunal found that the evidence did not support a finding that he had intended to nominate an occupation other than ‘finance manager’ and had made a ‘mistake’. It found that his only ‘mistake’ was that, having recorded in his application the occupation he intended to specify, he subsequently discovered he had been ill-advised. The Court observed that while in colloquial terms that was a mistake, it was not a mistake in the sense of specifying on the visa application an occupation the appellant did not intend to specify, or a mistake of the kind capable of correction under s.105.[2] Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [33].[3] Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [33].[4] In obiter comments the Court in KC v MIAC [2013] FCCA 296 (Cameron J, 17 May 2013) at [17] noted that a finding a mistake had been made was open to the Tribunal given an application for a skills assessment in respect of the ‘correct’ occupation had been made shortly prior to the lodgement of the visa application.[5] E.g. Chen v MIAC [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011) and Pavuluri v MIBP [2014] FCA 502 (Mortimer J, 16 May 2014).[6] See the example provided in Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [49], of a wrong skills assessment receipt number or reference number entered because of a typographical error.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.223 and 485.224 of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:·cl.485.223 of Schedule 2 to the Regulations; and·cl.485.224 of Schedule 2 to the Regulations.Catherine Carney-OrsbornMember

Ratio Decidendi

Legal Principle Established

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