LIU (Migration)

[2019] AATA 299

LIU (Migration) [2019] AATA 299 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shuang Liu
Mr Zhikai Wen

CASE NUMBER:  1816514

DIBP REFERENCE(S):  BCC2018/1202462

MEMBER:Susan Trotter

DATE:5 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 485 visa:

·cl.485.224(1) of Schedule 2 to the Regulations.

·cl.485.224(1A) of Schedule 2 to the Regulations.

Statement made on 05 February 2019 at 4:21pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visas – Subclass 485 (Temporary Graduate) – occupation of Quantity Surveyor – incorrect occupation nominated in error – notifying correct answers – relevant assessing authority – skills assessment remains valid – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 105, 360
Migration Regulations 1994, Schedule 2, cls 485.224, 485.311

CASES

Chen v Minister for Immigration and Citizenship [2011] FMCA 859
Patel v MIAC [2011] FCA 1220; (2011) 198 FCR 62
Patel v Minister for Immigration and Citizenship [2011] FMCA 399
Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502
Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874

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 Immigration on 21 May 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named applicant (the applicant) is a 28-year-old citizen of China. She first arrived in Australia in October 2010 as the holder of a student visa and has undertaken various studies in Australia. She applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 13 March 2018. The second-named applicant applied for the visa on the basis of being a member of the family unit of the applicant.

3. 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 (the Regulations).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because she had provided evidence of a required skills assessment for the occupation of Quantity Surveyor but not, as required, a skills assessment for the skilled occupation nominated in the visa application, that is, Surveyor.

5. The delegate also found that the second-named applicant (identified as the applicant’s husband in the visa application) could not be granted a Subclass 485 visa, as he did not meet the secondary visa criteria requiring him to be a member of the family unit of a person who holds a Subclass 485 visa having met the primary visa criteria.

6. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 6 June 2018.

7. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear at a hearing before the Tribunal.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   ISSUES

9. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which criteria include cl.485.224 of Schedule 2 to the Regulations.

10. Clause 485.224(1) requires that an applicant’s skills for the nominated skilled occupation have been assessed, during the last three years, by a relevant assessing authority as suitable for that occupation. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A).

11. As regards any secondary applicants, cl.485.311 requires that, among other things, any secondary applicant be a member of the family unit of a person who holds a Subclass 485 visa having satisfied the primary criteria.

12. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Has the applicant been assessed as suitable for the nominated occupation? And,

    (b)  If the assessment is expressed to be valid for a particular period, has that period not ended?

    CONSIDERATION

    Issue 1 – Has the applicant been assessed as suitable for the nominated occupation?

13. In the visa application, the applicant nominated the occupation of Surveyor, specified the name of the assessing authority as the Australian Institute of Quantity Surveyors and stated the date of the skills assessment as 1 March 2018 with a reference/receipt number of 2018/104.

14. The applicant submits that when completing the visa application form online she, in error, nominated the skilled occupation of Surveyor rather than, as intended, Quantity Surveyor and did not become aware of this error until receiving the delegate’s decision. In support of that submission, the applicant has provided a statutory declaration dated 1 February 2019 attesting to this error and a Form 1023, Notification of incorrect answer(s) dated 25 January 2019.

15. Obiter comments in Chen v Minister for Immigration and Citizenship [2011] FMCA 859 suggest that where an applicant makes a mistake of this kind, the only option is to make another application. However, in Patel v Minister for Immigration and Citizenship [2011] FMCA 399 (Nicholls FM, 1 June 2011), upheld on appeal: Patel v MIAC [2011] FCA 1220; (2011) 198 FCR 62; Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874; and Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502 (Pavuluri), in discussing whether an applicant’s nominated skilled occupation for the purposes of a visa application in the Graduate Work stream can be changed, it was suggested that it may be possible to correct an incorrect answer of this kind, for example, under s.105 of the Act, which requires an applicant to notify the correct answer if they become aware that an answer they have given in an application form is incorrect.

16. In Pavuluri, the Tribunal when initially considering the matter, 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 Pavuluri was not such a case. While the Federal Court on review did not reach a concluded view, it appears to have accepted that it may be able to examine other evidence or material to clarify or explain precisely which occupation an applicant intended to specify. 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, sought 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 of the Act.

17. In relation to the application before the Tribunal the following evidence points to the applicant at all times having intended to nominate ‘Quantity Surveyor’ rather than ‘Surveyor’ as the nominated occupation:

    (a)  A tax invoice evidences that the applicant applied for a skills assessment with the Australian Institute of Quantity Surveyors (AIQS) on 28 February 2018;

    (b)  The assessing authority stated in the visa application was the AIQS. That is the relevant assessing authority for the skilled occupation of Quantity Surveyor. The relevant assessing authority for the skilled occupation of Surveyor is the Surveying and Spatial Sciences Institute (SSSI);

    (c)  At the time of the visa application a skills assessment dated 1 March 2018 had already been issued by AIQS for the applicant for the occupation of Quantity Surveyor; and

    (d)  The award of a Master of Construction Practice from Bond University on 17 February 2018 to the applicant shows study undertaken by the applicant consistent with the occupation of Quantity Surveyor rather than Surveyor.

18. Having taken into account all of these matters, the Tribunal is satisfied that this is not a case where the applicant has changed her mind. Rather, the Tribunal is satisfied, having had regard to all of the evidence, that the applicant intended to nominate the skilled occupation of ‘Quantity Surveyor’ and that she instead nominated ‘Surveyor’ in error.

19. Accordingly, the Tribunal is satisfied and finds that the applicant’s nominated skilled occupation for the purposes of the visa application is Quantity Surveyor.

20. As already noted, the applicant has provided a skills assessment dated 1 March 2018 from AIQS stating, among other things, that the applicant’s skills have been assessed as “SUITABLE” for the nominated skilled occupation of Quantity Surveyor.

21. The applicant’s skills have therefore been assessed within the last three years by a relevant assessing authority as suitable for the nominated skilled occupation.

22. The requirements of cl.485.224(1) are therefore now met.

    Issue 2 – If the assessment is expressed to be valid for a particular period, has that period not ended?

23. The skills assessment by AIQS dated 1 March 2018 expressly states that it is valid for two years. That two-year period has not yet ended.

24. The requirement of cl.485.224(1A) is therefore met.

    Conclusion

25. The second-named applicant applied on the basis of being a member of the family unit of the applicant. Accordingly, the second-named applicant’s application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

26. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.224(1) and cl.485.224(1A) 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 visas.

27. Consistent with paragraph 8.2 of the Tribunal President’s Direction, Conducting Migration and Refugee Reviews (30 June 2015), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    DECISION

28. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.224(1) of Schedule 2 to the Regulations.

    ·cl.485.224(1A) of Schedule 2 to the Regulations.

    Susan Trotter
    Member