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

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).
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.
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).
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.
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.
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 6 June 2018.
In accordance with s.360(2)(a) of the…

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: LIU (Migration) [2019] AATA 299
Case: [2019] AATA 299
Decision Date: 5 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485. The applicant had nominated the occupation of "Surveyor" in her visa application, but contended that this was an error and she had intended to nominate "Quantity Surveyor". The delegate had made an adverse decision based on this discrepancy.

The Tribunal was required to determine whether the applicant had been assessed as suitable for the nominated occupation and, if so, whether the assessment period had expired. The applicant sought to correct the nominated occupation, submitting a statutory declaration and a notification of incorrect answers to support her claim that she had mistakenly entered "Surveyor" instead of "Quantity Surveyor".

The Tribunal considered previous case law, including *Chen v Minister for Immigration and Citizenship* and *Patel v Minister for Immigration and Citizenship*, which had discussed the possibility of correcting an incorrectly nominated occupation. While *Chen* suggested that a new application might be the only option for such an error, later cases like *Patel* and *Pavuluri v Minister for Immigration and Border Protection* indicated that it might be possible to correct an incorrect answer under section 105 of the Migration Act 1958 (Cth), provided there was evidence to support a different characterisation of the nominated occupation at the time of application. The Tribunal noted that the Federal Court in *Pavuluri* had accepted that other evidence could be examined to clarify an applicant's intended occupation.

The Tribunal remitted the applications for reconsideration with a direction that the applicant met the criteria for a Subclass 485 visa, specifically clauses 485.224(1) and 485.224(1A) of Schedule 2 to the Migration Regulations 1994.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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 TrotterMember

Ratio Decidendi

Legal Principle Established

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