Chen (Migration)

[2022] AATA 5098

Chen (Migration) [2022] AATA 5098 (7 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaomin Chen

REPRESENTATIVE:  Mr Liyuan Chen (MARN: 1462142)

CASE NUMBER:  2000827

HOME AFFAIRS REFERENCE(S):          BCC2019/4336912

MEMBER:R. Skaros

DATE:7 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.211 of Schedule 2 to the Regulations.

Statement made on 07 December 2022 at 5:52pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – circumstances applicable to grant – outside Australia at the time of finalisation – not prescribed criterion – visa history requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.211, 485.411

CASES
MIMIA v VSAF of 2003 [2005] FCAFC 73

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 31 December 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 August 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.411 of Schedule 2 to the Regulations because the applicant was outside Australia at the time the Department went to finalise the grant of the visa.

4. The applicant was represented in relation to the review.

5. The Tribunal did not consider a hearing to be necessary in this case as it was able to find in favour of the applicant on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   consideration of claims and evidence

   Legislation

6. Clause 485.411 is set out in Schedule 2 of the Regulations and appears under the sub-heading ‘Circumstances applicable to grant’. The provision requires the applicant who satisfied the primary criteria for visa grant to be in Australia when the visa is granted.

7. The question for the Tribunal in undertaking a review of a decision to refuse to grant a visa is whether, at the relevant time, it is satisfied that the criteria prescribed by the Act and the Regulations for the visa are met: MIMIA v VSAF of 2003 [2005] FCAFC 73. Prescribed criteria are set out s 31(3) and reg 2.03(1). Section 31(3) states that the Regulations may prescribe criteria for a visa or visas of a specified class, and reg 2.03(1) provides that for the purposes of s 31(3), and subject to regs 2.03A and 2.03AA, the prescribed criteria for the grant of a visa of a particular class are:

   ·the primary criteria set out in a relevant Part of Schedule 2 to the Regulations, and

   ·any secondary criteria set out in a relevant Part of Schedule 2 to the Regulations.

8. Relevantly, the requirements set out in the ‘circumstances applicable to the visa grant’ including cl 485.411 are not primary or secondary criteria and are therefore not prescribed criteria. Further, it is not a permissible direction for the Tribunal to remit on the basis of satisfaction of this criterion.

   Location of the applicant

9. In this case, the delegate found that the applicant was offshore at the time the application came to be finalised, the applicant had departed Australia. The delegate found that the visa could not be granted pursuant to cl 485.411.

10. Information before the Tribunal confirms that shortly after the decision was made to refuse to grant her visa, the applicant returned to Australia. She has since departed the country, but her representative has confirmed with the Tribunal that she wished to pursue the review application and intended to return to Australia. 

11. In the circumstances and noting that cl 485.411 is not a prescribed criterion for the grant of this visa, the Tribunal has considered whether the applicant satisfies a relevant prescribed criterion for the purpose of remitting this matter to the Department for reconsideration. 

    Visa history requirements

12. 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.

13. Departmental records indicate that the applicant had not previously held a Subclass 476 visa or a Subclass 485 visa on the basis of meeting the primary criteria. The Tribunal accordingly finds that the applicant meets cl. 485.211

14. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria and to determine whether the applicant is in Australia at the time of the grant of the visa.

    DECISION

15. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.211 of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member.