MYO (Migration)

[2019] AATA 5079

MYO (Migration) [2019] AATA 5079 (8 August 2019)

1.     

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pann Ei MYO

CASE NUMBER:  1809894

HOME AFFAIRS REFERENCE(S):           BCC2018/865535

MEMBER:Kira Raif

DATE:8 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2019 at 3:07pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – applicant previously held a Subclass 485 visa – applicant previously held a subclass 476 visa as a primary applicant – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.211

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 Home Affairs on 22 March 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 national of Burma, born in June 1991. She applied for the visa on 22 February 2018. The delegate refused to grant the visa because the applicant did not satisfy cl.485.211 of Schedule 2 to the Regulations because the delegate found that the applicant previously held a Subclass 485 visa. The applicant seeks review of the delegate’s decision. 

3.    The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Relevant law

4.    Clause 485.211 requires that the applicant has not previously held a Subclass 476 visa granted on the basis that the applicant satisfied the primary criteria for the grant of the visa, or a Subclass 485 visa granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.

Visa history requirements

5.    The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that in December 2012 the applicant was granted a Subclass 485 visa and held that visa until June 2014.

6.    The applicant confirmed in oral evidence to the Tribunal that she previously held the subclass 476 visa as a primary applicant. She said that she made the application because she was not fully aware of this requirement but the Tribunal is of the view that at least by the time her application was refused in March 2018, the applicant became aware of the requirement in cl. 485.211.

7.    The Tribunal finds, having regard to the evidence in the primary decision record and the applicant’s oral evidence to the Tribunal, that the applicant had previously held a Subclass 476 visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa. The Tribunal finds that the applicant does not meet cl. 485.211.

Conclusion

8.    It follows 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.

DECISION

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

Kira Raif
Senior Member