Minkyu (Migration)

[2019] AATA 2862

Minkyu (Migration) [2019] AATA 2862 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Rhee Minkyu

CASE NUMBER:  1811476

DIBP REFERENCE(S):  BCC2018/889938

MEMBER:Susan Trotter

DATE:27 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 27 February 2019 at 4:41pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment not provided at time of application – medical practitioner – applicant’s confusion with Post-Study Work stream – first student visa granted before 5 November 2011 – application can only be assessed against Graduate Work stream criteria – registration with Medical Board of Australia provided two months after application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 1, Item 1229(3)(l), Schedule 2, cl 485.223, r 2.26B

CASES

Nguyen v Minister for Immigration & Anor [2016] FCCA 1523

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, Citizenship and Multicultural Affairs (the Minister) on 10 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 25 year old citizen of the Republic of South Korea. He first arrived in Australia in April 2007 as the holder of a student visa, and has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 24 February 2018.

3. The delegate refused to grant the visa on the basis that the visa application had not been accompanied by evidence that the applicant had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority, as required.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 23 April 2018.

5. The applicant appeared before the Tribunal on 8 February 2019 and 14 February 2019 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES

7. 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).

8. Paragraph 1229(3)(j) of Schedule 1 to the Regulations provides that “An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa must nominate only one stream to which the application relates.” The two streams are the Graduate Work stream and the Post-Study Work stream.

9. The applicant specified the Graduate Work stream when making his application.

10. Clause 485.223 is one of the criteria that needs to be satisfied in the Graduate Work steam. It 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’.

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

    (a)  What was the nominated skilled occupation in the visa application? And

    (b)  Was the visa application accompanied by evidence that the applicant had applied for an assessment of their skills for that nominated occupation by the relevant assessing authority?

    CONSIDERATION

    Issue 1 - What was the nominated skilled occupation in the visa application?

12. At page 11 of the visa application, the applicant specified the nominated occupation as ‘Medical Practitioners nec’, a specified skilled occupation in the relevant instrument, IMMI 18/007.

    Issue 2 - Was the visa application accompanied by evidence that the applicant had applied for an assessment of their skills for that nominated occupation by the relevant assessing authority?

13. Pursuant to r.2.26B of the Regulations and the relevant instrument in force at the time of the visa application, IMMI 18/007, the relevant assessing authority for the occupation of Medical Practitioner is the Medical Board of Australia.

14. In the visa application, in response to the question “Have you applied to a relevant assessing authority for an assessment of your skills for you nominated skilled occupation?”, the applicant responded “No”. Further, the applicant did not provide evidence of having applied for a skills assessment with the visa application.

15. At the first hearing, the visa applicant told the Tribunal that he did not realise that there were two streams. He obtained information about the visa from his employer and from colleagues and friends. His understanding was that he needed to have studied in Australia and after he was finished his course he could then apply for the visa. He finished a Bachelor and Doctorate degree. He did not understand that he needed any additional skills assessment. His understanding was that his study was sufficient. He did not know that there were two different streams. The Tribunal discussed with the applicant that it held two concerns, firstly whether his application could be assessed in the Post-Study Work stream and secondly, if his application could not be assessed in the Post-Study Work stream, that the visa application was not accompanied by evidence of having applied for a skills assessment with the appropriate authority as required.

16. At the second hearing, the Tribunal put to the applicant[1] that records from the Department of Home Affairs (the Department) show that the applicant was first granted a student visa on 2 April 2007. The Tribunal noted that the reason that information was relevant was because if the applicant held a student visa in Australia granted on the basis of an application made prior to 5 November 2011, pursuant to Item 1229(3)(l) of Schedule 1 to the Regulations, his application was not able to be considered in the Post-Study Work stream and could only be assessed against the Graduate Work stream criteria. Further, if his application was assessed in the Graduate Work stream, and the Tribunal concluded that the application was not accompanied by evidence of having applied for an assessment of his skills in the nominated occupation by the appropriate authority, the Tribunal would have to conclude that the decision under review to refuse to grant the visa should be affirmed.

    [1] Pursuant to section 359AA of the Act

17. The applicant indicated that he understood the information and its relevance and that he wished to respond to that information. He stated that although his first student visa was in 2007, each time he has obtained another student visa as required.

18. The Tribunal acknowledged and accepted that this was the case but repeated its concern about not being able to assess the application in the Post-Study Work stream if his first student visa was granted on the basis of an application made prior to 5 November 2011.

19. Given the Department’s records that the applicant held a student visa in Australia granted on the basis of an application made prior to 5 November 2011, as confirmed by the applicant, pursuant to Item 1229(3)(l) of Schedule 1 to the Regulations, his application is not able to be considered in the Post-Study Work stream and can only be assessed against the Graduate Work stream criteria.

20. As regards the requirements of cl.485.223 for the Graduate Work stream, the applicant confirmed that the visa application was not accompanied by evidence of having applied for an assessment of his skills for the position of Medical Practitioner by the Medical Board of Australia because he understood, albeit incorrectly, that his completion of a Bachelor and a Doctorate qualification in Australia was all that was required and he did not find out until later that a skills assessment was required. Notably, the applicant subsequently provided to the Tribunal, on 21 April 2018, confirmation of registration by the Medical Board of Australia. That evidence was provided nearly two months after the date of the visa application on 24 February 2018 and after the delegate’s decision.

21. The Tribunal is not satisfied that this evidence, provided nearly two months after the visa application and after the delegate’s decision, can be considered as having ‘accompanied’ the application as required. In this regard, the Tribunal had regard to the case of Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a Subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great.

22. The Tribunal has found that the visa application, when made, was not accompanied by evidence of the applicant having applied for a skills assessment for the nominated skilled occupation by a relevant assessing authority such that the applicant does not satisfy the requirements of cl.485.223 as required for the Graduate Work stream. There is no discretion for this requirement to be disregarded.

    Conclusion

23. The Tribunal therefore finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    OTHER MATTERS

24. The Tribunal has also taken into account submissions received from the applicant after the hearing. In particular, the Tribunal acknowledges the applicant’s position of having lived in Australia for 12 years (as a high school student and then a student completing Bachelor and Doctorate qualifications) and his position of feeling scared and anxious and as though he has nowhere to go outside Australia. Further, the Tribunal acknowledges the applicant’s position of having held the relevant skills assessment at the relevant time but of not having provided evidence of having the skills assessment (or having applied for the skills assessment) at the relevant time resulting in a seemingly harsh outcome. However, as already noted, the Tribunal has no discretion to disregard cl.485.223, which the Tribunal has found is not met.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Susan Trotter
    Member