Tan (Migration)

[2020] AATA 4507

Tan (Migration) [2020] AATA 4507 (15 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Li Ping Tan

CASE NUMBER:  1931301

DIBP REFERENCE(S):  BCC2019/4167011

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 October 2020 at 4:37 pm (VIC time)

DATE OF WRITTEN RECORD:                28 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 October 2020 at 3:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – no skills assessment by relevant authority applied for or provided – claim to have been unaware of requirement – different requirements for graduate and post-study streams – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 485.223

CASE
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 October 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Ms Tan, you applied for a sub-class 485 temporary graduate visa in the work stream on 22 August 2019.  Your application was refused on 16 October 2019 because the delegate found you did not meet the criterion in clause 485.223 which is a mandatory requirement for the grant of a visa. 

4. Clause 485.223 requires that 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.

5. In your case, in completing your application you answered “No” to the question, “Have you applied to a relevant assessing authority for assessment of your skills for your nominated skilled occupation?”  The decision record confirms that on assessing your case it was found that there was no skills assessment application provided and so the delegate found you did not satisfy 485.223 and refused the application.

6. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.  The role of the Tribunal is to take a fresh look at your application and consider whether you are eligible for the grant of a 485 temporary graduate visa.  The requirement to satisfy 485.223 is unambiguous.  It requires that your application must be accompanied by evidence that you have applied for an assessment of your skills with the nominated skills occupation by a relevant authority.

7. In a pre-hearing submission your agent, Mr Smith, made a submission stating that you always intended applying under the post-study work stream which did not require a skills assessment and because you claimed it was always your intention to apply under the post-study stream, the Tribunal should assess your application against that stream which would mean assessing whether or not you satisfy clause 485.231, which is the requirement of having a satisfactory academic background, and I suspect you satisfy 485.231.

8. However, the situation is that what you told the Tribunal today is that you lodged the application without professional advice.  You say, “I did not know there were two streams and I lodged the application and then once I received the refusal decision I spoke to friends and asked, ‘What is a skills assessment?’”  And you then thought it was something that everybody had to do, and so you thought you should apply for a skills assessment and everything would be fine.

9. You contacted the Department and they gave you a link and you found your agent, Mr Smith, a migration lawyer.  Mr Smith, as I say, says that you always intended to apply for a visa in the post-study work stream. 

10. In considering your case and looking at your visa application, it indicates that you applied in the graduate work stream. The application clearly says that you must be provide the skills assessment.  I accept that you were unaware that there were different streams and that you only realised that once your application was refused.  The problem I have, as I explained to you, is that finding out later what you should have done earlier is not the same as having always intended to apply under a certain stream.  From your evidence today, I do not accept that it was always your intention to apply under the post-study work stream.

11. Your agent Mr Smith has referred to cases in the past where people have been granated visas when it has been recognised they wished to change from graduate work stream to post-study work stream.  There was clarification of that matter in a matter of Singh v the Minister FCA 774 in June this year, in which it was decided that once somebody applies in the graduate work stream they had to satisfy 485.223.  If they do not, the Minister is required to refuse the grant of a visa that was subject to the application.  The Minister has got no power to grant a visa that was not applied for.

12. It goes on to say in that decision, the Tribunal only has authority to review the decision made by the Minister.  It has no power to consider a visa application other than the one which has been validly made and determined by the Minister.

13. I believe that you have lodged a valid application for a 485 visa in the graduate work stream and you have not lodged with your application evidence that you have applied for a skills assessment by the relevant assessment body as required by cl.495.223. 

14. Clause 485.223 is a mandatory requirement for the grant of a visa.  It is not a matter in which the Tribunal has discretion. So having considered the evidence and finding that your application was not accompanied by such evidence, you do not satisfy 485.223 and, consequently, it is the decision of this Tribunal to affirm the decision under review. 

15. This decision was made at 4.37 pm on 15 October 2020.

    DECISION

16. The Tribunal affirms the decision under review.

    Tim Connellan
    Member