NGUYEN (Migration) - [2019] AATA 6937

NGUYEN (Migration) [2019] AATA 6937 (3 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hieu Ngoc Nguyen
CASE NUMBER:  1821885
HOME AFFAIRS REFERENCE(S):          BCC2018/785195
MEMBER:Katie Malyon
DATE:3 May 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 03 May 2019 at 1:54 pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – negative skill assessment for nominated skilled occupation and successful assessments for other occupations – intention to apply for post-study work stream and application for graduate work stream by mistake after informal advice from friend – skill assessment not required for post-study stream and applicant met other requirements – preferred occupation not applicable for graduate work stream and not on drop-down list on application – applicant selected closest occupation and answered that he had not applied for skill assessment for that occupation – regulations allow nomination and assessment for only one stream – unfair or unreasonable result – no warning to applicants about consequences of answering ‘no’ to any question – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 13, 29, 45, 46, 65(1)(a)(ii), (b), 351
Migration Regulations 1994 (Cth), rr 1.15I, 2.03(1A), 2.07, 2.26B, Schedule 1, para 1229(3)(j), (k), Schedule 2, cls 485.224(1), 485.231(1)
Acts Interpretation Act 1901 (Cth), s 46
Legislation Act 2003 (Cth), s 13
CASES

Kaur v Minister for Immigration [2018] FCCA 1657
Kumar v MIBP [2017] FCCA 2406
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Shastri (Migration) [2018] AATA 5155
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 Home Affairs on 13 July 2018 to refuse to grant the applicant, Vietnamese national Mr Hieu Ngoc Nguyen, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
Visa Class VC contains Subclass 485 (Temporary Graduate). The criteria for grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which includes criteria in 2 different streams: first, the Graduate Work; and second, the Post Study Work stream. Relevant provisions of Schedule 1 and Part 485 of Schedule 2 to the Regulations are set out in the Attachment to this decision.
Mr Nguyen applied for a Subclass 485 visa on 16 February 2018 and selected the Graduate Work stream. He nominated his occupation as that of Primary Health Organisation Manager ANZSCO 134213.
The delegate refused to grant the visa because Mr Nguyen did not satisfy cl.485.224(1) of Schedule 2 to the Regulations on the basis that the skill assessment provided to the Department was not in his nominated skilled occupation of Primary Health Organisation Manager ANZSCO 134213. Rather, he provided a favourable skill assessment from the Australian Pharmacy Council (APharmC) dated 14 June 2018 for the occupations of Retail Pharmacist ANZSCO 251513 and Hospital Pharmacist ANZSCO 251511. A copy of the delegate’s decision was provided to the Tribunal.
Documentation provided prior the hearing
On 17 August 2018, the Tribunal wrote to Mr Nguyen noting that one of the requirements for grant of a Subclass 485 visa is that the applicant’s skills have been assessed by the relevant assessing authority as suitable for their nominated skilled occupation. The Tribunal’s letter noted there is no evidence before the Tribunal that Mr Nguyen’s skills have been assessed as suitable for his nominated occupation of Primary Health Organisation Manager.
The Tribunal received a response from Mr Nguyen on 31 August 2018 with evidence of lodgement of a skill assessment with VetAssess. On 21 September 2018, he wrote to the Tribunal noting that VetAssess had provided a negative outcome in respect of his nominated occupation of Primary Health Organisation Manager. He also advised that he is appealing that decision and requested additional time to receive the outcome of the appeal.
On 22 November 2018, Mr Nguyen wrote to the Tribunal noting that the delegate refused his application because he did not provide a skill assessment of his nominated occupation. In his statement, he says he was surprised with the delegate’s decision and so lodged an application for review with the Tribunal. Mr Nguyen states he did not have the benefit of professional advice when he lodged his Subclass 485 visa application: rather, after briefly discussing his proposed application with a friend, he applied for a Subclass 485 visa in the Graduate Work stream although he had always intended to apply for, and does in fact meet, requirements for the visa in the Post-Study Work stream. He also notes that, as indicated in the accompanying Transcript from the University of Sydney for his Master of Pharmacy awarded on 13 December 2017, he has excellent academic results.
The Tribunal forwarded to Mr Nguyen an invitation to attend a hearing on 28 March 2019. A fortnight before the hearing, he provided the Tribunal with the following documentation:
·negative Qualifications Assessment issued by VetAssess dated 17 September 2018 for the occupation of Primary Health Organisation Manager ANZSCO 134213;
·letter from APharmC dated 14 June 2018 confirming Mr Nguyen has completed an accredited Australian Pharmacy degree at the University of Sydney and is therefore eligible to apply for provisional registration to practice as an intern Pharmacist in Australia;
·evidence of Mr Nguyen’s provisional registration as a Pharmacist with the Pharmacy Board of Australia for the period 27 December 2017 to 26 December 2018;
·evidence of Mr Nguyen’s registration as a Pharmacist with the Pharmacy Board of Australia for the period 27 December 2018 to 26 December 2019;
·Certificate issued by Virginia Commonwealth University confirming Mr Nguyen’s membership of the Golden Key International Society;[1] and,
·Dean’s Scholar Award issued to Mr Nguyen by the College of Humanities and Sciences by the Virginia Commonwealth University.
Hearing
[1] >
At the commencement of the hearing, Mr Nguyen provided the Tribunal with:
·a signed letter from the proprietor of St Marys Pharmacy (Mr Luu Dang) confirming that Mr Nguyen has been working as a full-time intern Pharmacist since 12 February 2018;
·Certificate of Completion dated 26 March 2019 issued by the Pharmacy Guild of Australia in relation to his successfully completing all requirements of the Guild Intern Training Program; and,
·evidence of having passed the February 2019 session of APharmC’s Intern Written Examination.
In response to the Tribunal’s questions regarding completion of his online Subclass 485 visa application, Mr Nguyen echoed evidence in his written statement of 22 November 2018 that he had discussed the application beforehand with a friend. He told the Tribunal his friend had indicated it was ‘not difficult’ and also what documentation he needed to collate before commencing the application. Initially, he said it was his mother’s cousin (who he calls uncle) who advised him: however, later in the hearing, he clarified he spoke with his uncle only after he had lodged his visa application and experienced some unexpected difficulties in the process. After he got all of his documentation together (based on the advice of his friend), Mr Nguyen said he sat down late on 26 February 2018 to complete the online application. He confirmed that, when completing his Subclass 485 visa application, he responded ‘No’ to the second question in the application which asks whether he has applied for a skills assessment for his nominated occupation (the Tribunal notes the first question asks the applicant to confirm they are over 18 but under 50 years of age). He also acknowledged that, later in the visa application process, he was prompted to nominate a skilled occupation and then also name the assessing authority to which he had (already) applied for a skill assessment as well as provide the date and receipt number for such an application.
Mr Nguyen told the Tribunal he made a mistake both when completing the visa application in the Graduate Work stream and nominating Primary Health Organisation Manager as his skilled occupation. He said he did not have any experience in immigration law which is why he chose the wrong stream: it had always been his intention to apply in the Post-Study Work stream. Mr Nguyen added he thought he may have made a mistake as he could not see the occupation of Pharmacist in the drop-down list of occupations for a Subclass 485 visa when he was prompted to insert his nominated skilled occupation. And then, when prompted about the name of the assessing authority for his nominated occupation, he only recognised APharmC from the drop-down list of assessing authorities. Because he had to provide evidence of the receipt number for his application to an assessing authority, he said he interrupted preparation of his online Subclass 485 visa application and proceeded to lodge a skill assessment application online with APharmC. His visa application was otherwise ready to proceed since, with the benefit of earlier advice from his friend, he had already collated all other supporting documentation required.
After he had lodged the application, Mr Nguyen said he discussed the matter with his uncle who works with a migration consultancy firm. His uncle told him that he had made a mistake completing his application in the Graduate Work stream and, if the delegate makes an unfavourable decision, then he should make an appointment to meet the Principal of his firm. Mr Nguyen added that it was only when the delegate refused his visa application and following his consultation with the Principal of the migration consultancy firm where his uncle works that he came to realise what a big mistake he had made, one which has really big consequences for him, especially now that he is now working as a Pharmacist in St Marys. He requested the Tribunal reconsider his Subclass 485 visa application for the Post-Study stream, which is what he always intended to apply for in the first place after completing his Master of Pharmacy degree at Sydney University.
For the following reasons, the Tribunal has concluded that the delegate’s decision must be affirmed. However, for the reasons outlined below at [44] – [64], the Tribunal will refer this matter to the Minister for consideration consistent with s.351 of the Act.
ISSUES
Mr Nguyen is seeking to satisfy the primary criteria for a Subclass 485 visa. As noted above, this Subclass has 2 streams: the Graduate Work stream; and, the Post-Study Work stream.
In his application, Mr Nguyen selected the Graduate Work stream which includes criteria in cl.485.223 and cl.485.224 of Schedule 2 to the Regulations. These criteria are concerned with an applicant’s skills in relation to their nominated skilled occupation. Clause 485.223 provides that, when the application was made, it was accompanied by evidence that the applicant has applied for an assessment of their skills in their nominated skilled occupation made by a relevant assessing authority. Clause 485.224(1) requires that an applicant’s skills for their nominated skilled occupation must have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
The alternative stream in the Subclass 485 visa is the Post-Study Work stream. Criteria in the Post-Study Work stream are that the applicant holds a specified qualification/s from a specified educational institution and the applicant’s study satisfies the Australian study requirement in the 6 months before the day the application was made: cl.485.231 of Schedule 2 to the Regulations. A skill assessment in the applicant’s nominated skilled occupation is not a necessary criterion for the Post-Study Work stream.
In the circumstances of this case, the issues for determination by the Tribunal are:
1)Was the visa application accompanied by evidence that the applicant had applied for a skills assessment from a relevant assessing authority of their skills for the nominated skilled occupation; and,
2)Can the applicant change streams?
CONSIDERATION OF CLAIMS AND EVIDENCE
Was the visa application accompanied by evidence that the applicant had applied for a skills assessment from a relevant assessing authority of their skills for the nominated skilled occupation?
As noted above, cl.485.223 of Schedule 2 to the Regulations 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’.
The term ‘skilled occupation’ has the meaning given by r.1.15I of the Regulations: r.1.03 of the Regulations. 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, it is applicable to the person in accordance with the specification of the occupation. The term ‘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 of the Regulations. In this case, the relevant legislative instrument is IMMI 18/007.
Having reviewed Mr Nguyen’s Subclass 485 visa application in the Department’s file, it is evident that, in response to the second question in the online application – that is, whether he had applied to a relevant assessing authority for an assessment of his skills for his nominated occupation - he replied ‘No’. This is consistent with Mr Nguyen’s written statement provided to the Tribunal prior to the hearing and was echoed by him at the hearing. He explained that, having completed a 2 year Master of Pharmacy at the University of Sydney (following his undertaking a Bachelor of Science majoring in Chemistry at the Virginia Commonwealth University in Richmond, Virginia USA), he had always intended to apply for a Subclass 485 visa in the Post-Study Work stream, for which a skill assessment is not necessary. So, at the beginning of the on-line application process, he truthfully answered in the negative when asked if he had applied for a skills assessment.
The Tribunal observed in the hearing that, as confirmed by his Subclass 485 visa application in the Department’s file, Mr Nguyen applied not for the Post-Study Work stream but, rather, the Graduate Work stream which explains why, later in the online application and despite answering ‘No’ to the question as to whether he had applied for a skill assessment, he was requested to state his nominated skilled occupation and identify a relevant assessing authority to which he had applied for a skill assessment. Mr Nguyen acknowledged the Tribunal’s comments in this regard.
Mr Nguyen explained that he completed the application late at night and he is not really experienced in immigration law. He said that, when prompted by the Department’s computer program towards the end of the online application process to nominate a skilled occupation, name and assessing authority and provide the date and receipt number for his skill assessment application, he was ‘so shocked and surprised to be asked these questions’. He added that he ‘just made a mistake choosing the occupation of Primary Health Organisation Manager’ but ‘was aware that APharmC assessed qualifications for Pharmacists for skilled migration purposes so that’s why’ he inserted APharmC’s details. Mr Nguyen told the Tribunal that he inserted Primary Health Organisation Manager because he ‘could not find the occupation of Pharmacist on the drop-down list of occupations’ in the online visa application. The Tribunal notes that the occupations of Hospital Pharmacist ANZSCO 251511 and Retail Pharmacist ANZSCO 251513 are included on the Short-term Skilled Occupation List (St SOL) in IMMI 18/007 and, therefore, are not applicable for Subclass 485 visas in the Graduate Work stream.
Mr Nguyen told the Tribunal that, to complete his visa application form, he ‘had to interrupt’ his visa application when prompted by the ‘surprise questions about ‘naming a skill assessment authority and give receipt details’ so that he could apply for an assessment of his skills from APharmC. The Tribunal has reviewed the receipt issued by APharmC on 16 February 2018 at 11:27 pm and which accompanied Mr Nguyen’s Subclass 485 visa application when that application was lodged with the Department on 16 February 2018 at 11:31 pm: that is, just 4 minutes after Mr Nguyen completed lodgement of his application for an online skill assessment with APharmC. Legislative Instrument IMMI 18/007 provides that APharmC is the prescribed assessing authority for the occupations of Hospital Pharmacist ANZSCO 251511 and Retail Pharmacist ANZSCO 251513. However, neither of these occupations is on the Medium and Long-term Strategic Skills List (MaLT SOL), that is, the prescribed list of occupations for Subclass 485 visa purposes in the Graduate Work stream. Rather, as indicated above, these occupations are on the St SOL. The Tribunal notes that it is because the occupations of Hospital Pharmacist and Retail Pharmacist are not on the MaLT SOL that the Tribunal has not considered the issue of whether Mr Nguyen can change his nominated occupation to either of the 2 occupations for which he has a favourable skill assessment.
Having reviewed Mr Nguyen’s Departmental file, the Tribunal accepts that he accompanied his Subclass 485 visa application in the Graduate Work stream with evidence of having applied for a skill assessment from APharmC: however, that evidence of lodgement of a skill assessment application was not for his nominated occupation of Primary Health Organisation Manager but, rather, for the occupations of Hospital Pharmacist and Retail Pharmacist. The relevant assessing authority for the occupation of Primary Health Organisation Manager, as specified in IMMI 18/007, is VetAssess.
Following lodgement of his online visa application, Mr Nguyen received a request from the Department on 19 March 2018 to provide the results of his skill assessment and health examination. In reply, Mr Nguyen indicated the date of his health examination with BUPA and that he is still awaiting APharmC’s assessment of his qualifications. He attached evidence of further communications with APharmC in this regard.
As noted above, at the time he lodged his application in the Graduate Work stream for which evidence of lodgement of a skill assessment is required, Mr Nguyen responded ‘No’ to the question as to whether he had applied for a skills assessment. However, later, when prompted to nominate a skilled occupation he indicated that his nominated occupation is Primary Health Organisation Manager. And, when prompted, he stated that he had applied for a skills assessment of that nominated occupation to APharmC on 16 February 2018 and provided the relevant receipt number 121878.
Accordingly, although Mr Nguyen’s Subclass 485 Graduate Work stream visa application was accompanied by evidence of an application for a skills assessment, it was not for a skill assessment in his nominated occupation by the relevant assessing authority for that nominated occupation. The relevant assessing authority for the occupation of Primary Health Organisation Manager is VetAssess (not APharmC). The Tribunal notes that, for reasons outlined below at paras [51] – [55], both the timing of the delegate’s request on 19 March 2018 for the results of Mr Nguyen’s skill assessment and the delegate’s failure to inform him that APharmC is not the relevant assessing authority specified in IMMI 18/007 for his nominated occupation of Primary Health Organisation Manager are significant.

Having regard to evidence in the Department’s file and as confirmed by Mr Nguyen at the hearing, the Tribunal finds that, when his Subclass 485 application was made on 16 February 2018 in the Graduate Work stream, Mr Nguyen did not accompany his application with evidence that he had applied for an assessment of his skills in his nominated occupation by the relevant assessing authority as required by cl.485.223 of Schedule 2 to the Regulations.
As noted above, Mr Nguyen did accompany his visa application with evidence that he had applied for a APharmC skill assessment and later provided the Department with a copy of a favourable skill assessment from APharmC dated 14 June 2018 for the occupations of Retail Pharmacist and Hospital Pharmacist with Ref No. 121878. This is the same reference number provided by Mr Nguyen in his Subclass 485 visa application. However, he did not nominate either of these occupations as his nominated occupation in his Subclass 485 visa application: neither of these occupations is included on the MaLT SOL and, therefore, are not on the list of occupations in the Graduate Work stream of the Subclass 485 visa.
In both his written statement provided to the Tribunal before the hearing as well as in oral evidence at the hearing, Mr Nguyen said it was never his intention to apply for a Subclass 485 visa in the Graduate Work stream: rather, he had always intended to apply for and does meet criteria for the Post-Study Work stream following completion of his Master’s degree in Pharmacy at Sydney University: a skill assessment is not a necessary criterion for the Post-Study Work stream.
Having regard to evidence in the Department’s file, the Tribunal finds that when he lodged his Subclass 485 visa application on 16 February 2018, Mr Nguyen did not accompany his application with evidence of having applied to VetAssess for an assessment of his qualifications in his nominated occupation of Primary Health Organisation Manager ANZSCO 134213. Accordingly, he does not meet the requirements in cl.485.223 of Schedule 2 to the Regulations.
Can the applicant change streams?
As it has found that Mr Nguyen does not met requirements in the Subclass 485 Graduate Work stream, the Tribunal has considered whether it can and should assess his application against the remaining stream, the Post-Study Work stream, as submitted by Mr Nguyen. There has been no judicial consideration of this issue to date. The Tribunal acknowledges the non-binding decision taken in the differently constituted Tribunal case of Shastri (Migration) [2018] AATA 5155 (Shastri’s case) where it was accepted that an applicant can change streams. In Shastri’s case, the applicant had attempted to correct their error in selecting the wrong stream but their attempt was not accepted by the Department on the basis that, consistent immigration policy, an applicant cannot change the stream they have selected after their application has been made.
The Tribunal observes that Part 485 of Schedule 2 to the Regulations was restructured to create 2 visa streams within the Subclass 485 Temporary Graduate visa with effect from 23 March 2013. The Explanatory Statement to the amending regulations which introduced these 2 streams states that the purpose of the amendment is to ensure that applicants are “assessed against the criteria specific to the stream they have selected and not against the criteria for the alternate stream”[2] (emphasis added).
[2] Explanatory Statement to Select Legislative Instrument 2013 No. 33 Annexure C, p.8
To consider whether it can, and should, assess an applicant against both streams of Part 485 of Schedule 2 to the Regulations the Tribunal has had regard not only to provisions of the Act and the Regulations but also to provisions in the Acts Interpretations Act 1901 and the Legislation Act 2003 as well as judicial commentary on these provisions.
Section 29 of the Act empowers the Minister to grant a non-citizen a visa to enter and remain in Australia. Section 31 of the Act provides for prescribed classes of visas and the prescription of visa criteria in the Regulations. The prescribed classes of visas are set out in respective items in Schedule 1 to the Regulations: r.2.01 of the Regulations.
Regulation 2.03 provides that the prescribed criteria for the grant of a visa are those set out in a relevant Part of Schedule 2 to the Regulations. In circumstances where one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’, the primary criteria are taken to be the primary criteria described as that stream and all primary criteria that are not described as that stream: r.2.03(1A) of the Regulations. This provision contemplates the structure of Part 485 of Schedule 2 to the Regulations which contains 3 Subdivisions. First, there is Subdivision 485.21 Common criteria: that is, the primary criteria that are not described as a stream. Then, there is Subdivision 485.22 Criteria for Graduate Work stream and, finally, Subdivision 485.23 Criteria for Post-Study Work stream. All of these Subdivisions are extracted in the Attachment to this decision. Relevantly, the extract includes the Notes.
Subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa in a particular class: s.45 of the Act. The requirements for a valid visa application are specified in s.46 of the Act which, relevantly, includes applying for a visa of a specified class, satisfying the requirements prescribed in the Regulations and payment of any required fee. For the purposes of s.45 and s.46 of the Act, r.2.07 of the Regulations outlines a number of requirements including payment of any visa application charge, completion of an approved form and satisfaction of any matters set out in Schedule 1 to the Regulations. Consistent with s.65(1)(a)(ii) of the Act, after considering a valid visa application, the Minister must grant the visa if satisfied, amongst other things, that criteria prescribed by the Act or the Regulations for the visa have been met. If not so satisfied, the Minister must refuse to grant the visa: s.65(1)(b) of the Act.
To make a valid application for a Subclass 485 visa, paragraph 1229(3)(j) in Schedule 1 to the Regulations requires an applicant to nominate only one stream to which their application relates (emphasis added). Paragraph 1229(3)(k) of Schedule 1 to the Regulations provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Graduate Work stream must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument. Alternatively, if seeking to satisfy the primary criteria for grant of a Subclass 485 in the Post-Study Work stream, the applicant must either hold, or have held, their first Student Temporary (Class TU) visa granted on the basis of an application made on or after 5 November 2011.
Relevant to the Tribunal’s consideration of the issue of whether an applicant can change streams are the Notes in Part 485. The Notes, which appear under the Division heading 485.2 PRIMARY CRITERIA and state that:
The primary criteria for the grant of a Subclass 485 visa include criteria set out in streams.
If an applicant applies for a Subclass 485 visa in the Graduate Work stream, the criteria in subdivisions 485.21 and 485.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 485 visa in the Post-Study Work stream, the criteria in Subdivisions 485.21 and 485.23 are the primary criteria
The Notes to Schedule 2 to the Regulations form part of the Regulations: s.13 and s.46 Acts Interpretation Act and s.13 Legislation Act 2003. Further, every word of the Notes must be given meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]. This meaning may be in the context of the statute as a whole.
In the case of Subclass 485 visa applications, Schedule 1 of the Regulations requires that an applicant must nominate a stream for their visa application to be a valid application: 1229(3)(j). The Notes in Part 485 of Schedule 2 to the Regulations at Division 485.2 extracted at para [39] above then expressly specify the primary criteria to be assessed by the decision maker after the applicant has nominated either the Graduate Work stream or the Post-Study Work stream in their application. This is consistent with the extract from the Explanatory Memorandum to the amending regulations that introduced the two streams referred to above at para [33] which states the intention of the amending regulations is to ensure that applicants are only assessed against the criteria specific to the stream that they have selected and not against the criteria for the alternate stream.
In the circumstances of this case and having reviewed documentation in the Department’s file, it is evident that when Mr Nguyen applied for his Subclass 485 visa using the Department’s on-line ImmiAccount he chose to apply in the Graduate Work steam. He had the option to apply for the [Temporary Graduate (Class VC, subclass 485) - Post-Work Study stream]: however, despite substantially complying with the Post-Work Study stream requirements at the time of his application, Mr Nguyen chose instead to apply in the [Temporary Graduate (Class VC, subclass 485) - Graduate Work stream] by clicking on that stream in the drop down list of 7 Onshore General Skilled Migration categories from which to choose.[3] Based on the Tribunal’s analysis of relevant provisions of the Act and the Regulations, the Tribunal concludes that, once an applicant for a Subclass 485 visa has nominated one of the 2 streams in their visa application, they cannot then change to the other stream. This is despite their substantially complying with the other stream.
[3] The remaining 5 Onshore General Skilled Migration categories listed on the ImmiAccount screen are: Skilled Independent (Class VB, subclass 885), Skilled (Class VB, subclass 886), Skilled Regional (Class VB, subclass 887), Skilled Regional Sponsored (Provisional) (Class VC, subclass 487) and Skilled Regional Sponsored (12 month renewal) (Provisional) (Class VC, subclass 487)
Accordingly, Mr Nguyen must be assessed against the primary criteria for the Graduate Work stream in subdivisions 485.21 and 485.22 of Schedule 2 to the Regulations. As such, the Tribunal finds that he cannot now change to the Subclass 485 Post-Study Work stream.
Is this an appropriate case to refer to the Minister?
The Tribunal has considered whether this is an appropriate case to refer to the Minister for intervention.
Under s.351 of the Act the Minister may substitute, for a decision of the Tribunal, a decision that is more favourable to an applicant if the Minister thinks it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for consideration. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the power when requested to do so by an applicant, or another person, or in any other circumstances.
The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising the public interest power under s.351 of the Act.[4] The guidelines indicate the Minister will give possible consideration to exercising the public interest power in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. As outlined in the Minister’s guidelines, circumstances which may be unique or exceptional include, relevantly,:
Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added).
[4] Available at
Relevant to its consideration of whether this is an appropriate case to refer to the Minister, the Tribunal notes the following:
First, the Federal Circuit Court of Australia (FCCA) has commented on the absence of any warning to applicants about the consequences when responding ‘No’ to questions in the online Subclass 485 visa application form: Kumar & Anor v Minister for Immigration & Border Protection & Anor [2017] FCCA 2406, Driver J at [14] (Kumar’s case). That particular case involved an applicant’s negative response to the question regarding whether he had undertaken a prescribed English language test within 3 years of lodgement of the application, one of the common criteria for both streams of the Subclass 485 visa. His Honour observes that the applicant makes the ‘reasonable point’ that ‘it would be kinder to applicants and perhaps more efficient if the online form prevented applicants proceeding further once they answered the question in the negative’. Driver J’s comments in Kumar’s case have been recognised by Neville J in Kaur v Minister for Immigration & Anor [2018] FCCA 1657.
In passing, the Tribunal notes that Justice Driver’s comments in Kumar’s case echo 2 principles of the Standard published by the Australian Government’s Digital Transformation Agency. In this regard, Principle 1 (Understand user needs) and Principal 3 (Agile and user-centred process) recognise the need for the Government’s digital services to be user focused and to provide support to users.[5] Further, the Tribunal also notes the Australian Government’s 2007 report Automated Assistance in Administrative Decision-Making – Better Practice Guide observes that managing user input is critical to the risk of error or misrepresentation and recommends that online systems provide a commentary function.[6] It adds that poorly expressed fields or questions present the risk that a decision will be made without sufficient information.
[5] Australian Government, Automated Assistance in Administrative Decision-Making – Better Practice Guide, February 2007, p.26 -138
If, as contemplated by Driver J, Mr Nguyen had been prevented from proceeding further with his Subclass 485 Graduate Work stream application once he responded in the negative to the question as to whether he had applied to a relevant assessing authority for an assessment of his skills, he may well have sought further advice from his friend or reviewed the Department’s website for more information for intending Subclass 485 applicants. He may also have sought advice from a competent professional adviser or contacted the Department for advice. The Tribunal accepts that this is speculative but it may well have resulted in him not proceeding with his Subclass 485 Graduate Work stream application and, instead, applying for the visa in the Post-Work Study stream.
Second, Mr Nguyen’s Student Subclass 573 visa did not cease until 21 March 2018. He completed his Master of Pharmacy degree at the University of Sydney on 13 December 2017.
In the circumstances, instead of writing to Mr Nguyen on Monday, 19 March 2018 requesting that he provide a skill assessment and the results of his health examination, it should have been evident to the delegate considering his application that APharmC is not an assessing authority for an occupation on the MaLT SOL and therefore not open to applicants seeking a Subclass 485 visa application in the Graduate Work stream. The Tribunal notes that APharmC is identified as a relevant assessing authority on the St SOL only: that is, whilst some assessing authorities - such as Trades Recognition Australia and VetAssess - are listed for different occupations on both the MaLT SOL and the St SOL, the APharmC is listed only on the St SOL.
The Tribunal is of the opinion that, instead of requesting a skill assessment from an assessing authority which is not listed on the MaLT SOL, the delegate could - having turned their mind to the issue of the need for a skills assessment - have contacted Mr Nguyen to bring to his attention the fact that he could lodge a new valid application for a Subclass 485 visa in the Post-Study Work stream before expiry of his Student visa in 2 days on Wednesday, 21 March 2018. The Tribunal’s position in this regard is reinforced by file notes dated 19 March 2018 in the Department’s file confirming that Mr Nguyen ‘met’ all other requirements for the visa apart from providing a favourable skill assessment and the result of his BUPA health test. The file notes expressly acknowledge that a skills assessment receipt had been provided and that Mr Nguyen had completed a Master of Pharmacy on 13 December 2015 over a period of more than 104 weeks.[7]
[7] BCC2018/785195 ff 137 - 138
In the circumstances, Mr Nguyen may have lodged a fresh Subclass 485 visa application in the Post-Study Work stream as he had originally intended and thereafter withdrawn his Subclass 485 visa application in the Graduate Work stream lodged on 16 February 2018 which was refused by the delegate on 13 July 2018.
The Tribunal accepts that it is not incumbent upon case officers to make urgent assessments of whether applicants meet relevant criteria such that they may validly reapply for an application for which they meet relevant criteria. However, in the circumstances of this case, the delegate requested a skill assessment in circumstances where, at the beginning of his application, Mr Nguyen indicated that he had not applied for a skill assessment, it was evident from documentation accompanying his application that he did apply for a skill assessment but only 4 minutes before lodgement of his Subclass 485 application and, relevantly, the evidence accompanying his Subclass 485 visa application was for an assessment of his skills from an assessing authority which is not on the MaLT SOL.
Third, the Tribunal found Mr Nguyen to be a credible witness and, on the evidence, it is clear that he genuinely did intend to apply for a Subclass 485 visa in the Post-Study Work stream. He had, with the benefit of his friend’s advice, already collated all necessary documentation in support of his Subclass 485 visa application in the Post-Study Work stream as confirmed by the Tribunal’s examination of documentation lodged in support of his application.
During the hearing, Mr Nguyen referred the Tribunal to the fact that he responded truthfully - in the negative - to the question as to whether he had applied to a relevant assessing authority for an assessment of his skills for his nominated occupation. Then, much later in the online application form and despite stating that he had not applied for a skill assessment, he said he was actually asked to identify a nominated occupation - Pharmacist was not there - and then confirm the name of the assessing authority to which he was supposed to have already applied for a skill assessment. In the circumstances, he said he had to interrupt his visa application to apply online to APharmC for a skill assessment. As evidenced by the 4 minute time difference between lodgement of Mr Nguyen’s skill assessment application with APharmC and lodgement with the Department of his Subclass 485 visa application referred to above at para [23], Mr Nguyen said it was all a bit of a panic because he was shocked and not expecting to have to apply for a skill assessment at all.
Against this, Mr Nguyen acknowledged in his oral evidence to the Tribunal that:
a)despite being surprised by the unexpected issues encountered during lodgement of his Subclass 485 visa application, he did not suspend or postpone lodgement of his application. He acknowledged that this is despite the fact that he was aware his Student Subclass 573 visa did not cease until 31 March 2018, that is, nearly 6 weeks after he sat down late on Sunday, 16 February 2018 to lodge his Subclass 485 visa application;
b)he did not contact the Department immediately after lodging his application with a view to clarifying why, having thought he did not need to apply for a skill assessment, he was prompted to complete details about a skill assessment in his application even though, at the commencement of the application and in response to the second question in the online form, he had responded in the negative as to whether he had applied for such an assessment; and,
c)he did not contact the Department to understand why the nominated occupation of Pharmacist was not on the drop-down list of occupations for him to choose from in the online application. He told the Tribunal that he did discuss it with his uncle, but only after he had lodged his application, and his uncle told him to ‘just wait’ and see what the Department says.

In summary, although he thought that he was ready to proceed with what he thought would be lodgement of a fully documented decision-ready Subclass 485 visa application, it is clear that Mr Nguyen could, and should, have postponed lodgement of the application to clarify why he was asked about whether he had applied for a skills assessment, why Pharmacist was not on the drop-down list of occupations and then why he was asked to provide details of lodgement of a skills assessment for his nominated occupation.
Fourth, on the evidence it is clear that, having regard to documentation in the Department’s file, if Mr Nguyen had applied in the Post-Study Work stream before expiry of his Student visa on 21 March 2018 he would have been granted a Subclass 485 visa.
Based on its review of the Department’s file, the Tribunal is satisfied that Mr Nguyen nominated only one stream to which his application relates, that is, the Subclass 485 (Temporary Graduate) Graduate Work stream consistent with paragraph 1229(3)(j) of Schedule 1 to the Regulations. In addition, based on evidence provided to the Tribunal, it is satisfied that Mr Nguyen was, in fact, seeking to satisfy the primary criteria for grant of a Subclass 485 visa in the Post-Study Work stream and that he held a Student Temporary (Class TU) visa granted on the basis of an application made on or after 5 November 2011 and, further, that it was the first such Student visa held by him consistent with paragraph 1229(3)(l) of Schedule 1 to the Regulations. All other Schedule 1 requirements have been met.
Further, the Post-Study Work Stream requires the applicant to hold a qualification of a kind specified by the Minister in an instrument: cl.485.231(1) of Schedule 2 to the Regulations. The relevant instrument is IMMI 13/013. It specifies that, for the purpose of cl.485.231(1), the following qualifications that are a result of study undertaken at Australian Qualifications Framework Level 7 or higher:
·   Bachelor Degree;
·   Bachelor (Honours) Degree;
·   Masters by Coursework Degree;
·   Masters by Research Degree;
·   Masters (Extended) Degree; and/or
·   Doctoral Degree.
Evidence before the Tribunal is that Mr Nguyen successfully completed a Masters of Pharmacy Degree by coursework at the University of Sydney on 13 December 2017. Had Mr Nguyen applied for Post-Study Work stream as intended, it is evident that he would have been granted a Subclass 485 visa.
Having regard to these cumulative considerations, the Tribunal is of the view the application of relevant legislation in this case may constitute unique or exceptional circumstances on the basis that it leads to an unfair or unreasonable result. Accordingly, the Tribunal considers it appropriate to request that this case be brought to the attention of the Minister in order to consider whether to exercise the Ministerial discretionary intervention powers under s.351 of the Act. Mr Nguyen may wish to lodge further documentation in support of the application direct to the Department for referral to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Katie Malyon

Member
Attachment –Extracts from the Migration Regulations 1994
Schedule 1
1229 Skilled (Provisional) (Class VC)
…
(3) Other:
…
(j) 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.
(k) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this paragraph.
(l) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream:
(i) must hold a Student Temporary (Class TU) visa that:
(A) was granted on the basis of an application made on or after 5 November 2011; and
(B) is the first Student Temporary (Class TU) visa that the applicant has held; or
(ii) must have held a Student Temporary (Class TU) visa that:

..
Schedule 2
Subclass 485 – Temporary Graduate
485.1 INTERPRETATION

485.111 In this Part:
degree has the same meaning as in subregulation 2.26AC(6).
diploma has the same meaning as in subregulation 2.26AC(6).
trade qualification has the same meaning as in subregulation 2.26AC(6).

Note 1: Regulation 1.03 provides that Australian study requirement has the meaning set out in regulation 1.15F.
Note 3: For registered course, relevant assessing authority and skilled occupation, see regulation 1.03.

485.2 PRIMARY CRITERIA

Note: The primary criteria for the grant of a Subclass 485 visa include criteria set out in streams.
If an applicant applies for a Subclass 485 visa in the Graduate Work stream, the criteria in Subdivisions
485.21 and 485.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 485 visa in the Post-Study Work stream, the criteria in Subdivisions 485.21 and 485.23 are the primary criteria.
The primary criteria must be satisfied by at least one member of a family unit.
The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated.

485.21 COMMON CRITERIA

Note: These criteria are for all applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa.

485.211 The applicant:
(a) has not previously held a Subclass 476 (Skilled -- Recognised Graduate) visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa; and
(b) has not previously held a Subclass 485 visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.

485.212 The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

485.213 When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
485.215 (1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
(2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.
485.216 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 485 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.
(4) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 485 visa; and
(b) had turned 18 at the time of application;
satisfies public interest criteria 4019.
(5) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 485 visa; and
(b) has not turned 18; and
(c) made a combined application with the applicant;
satisfies public interest criteria 4015 and 4016.
485.217 (1) The applicant satisfies special return criteria 5001, 5002 and 5010.
(2) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 485 visa; and
(b) has previously been in Australia;
satisfies special return criteria 5001, 5002 and 5010.
485.218 Grant of the visa would not result in either:
(a) the number of Subclass 485 visa s granted in a financial year exceeding the maximum number of Subclass 485 visas specified by the Minister in an instrument in writing for this paragraph, that may be granted in that financial year; or
(b) the number of visas of particular classes (including Subclass 485) granted in a financial year exceeding the maximum number of visas of those classes, specified by the Minister in an instrument in writing for this paragraph , that may be granted in that financial year.

485.22 CRITERIA FOR GRADUATE WORK STREAM

Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.

485.221 The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.
485.222 Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation.
485.223 When the 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.
485.224 (1) The skills of the applicant for the applicant's nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
(1A) If the assessment is expressed to be valid for a particular period, that period has not ended.
(2) If the applicant's skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
485.23 CRITERIA FOR POST-STUDY WORK STREAM
Note: These criteria are only for applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Post-Study Work stream.
485.231 (1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2) Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3) The applicant's study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
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