Patel v Minister for Immigration & Anor [2011] FMCA 399 (1 June 2011)

Last Updated: 2 June 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 399

MIGRATION – Review of decision of Migration Review Tribunal – application for a Skilled Graduate visa – application of “Form 1023” to a nominated occupation – Tribunal’s findings reasonably open to it to make – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.105, 476 Migration Regulations 1994 (Cth), Sch.1, Sch.2

Applicant:

PRATIKKUMAR DINESHBHAI PATEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 281 of 2011

Judgment of:

Nicholls FM

Hearing date:

18 April 2011

Date of Last Submission:

18 April 2011

Delivered at:

Sydney

Delivered on:

1 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr HPT Bevan

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application made on 21 January 2011 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 281 of 2011

PRATIKKUMAR DINESHBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court was made on 21 February 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”). It seeks review of, and relief in relation to, the decision of the Migration Review Tribunal (“the Tribunal”), made on 21 January 2011, to affirm the decision of a delegate of the respondent Minister to refuse the grant of a Skilled (Provisional) (Class VC, Subclass 485, Skilled Graduate) visa (“the visa”) to Mr Patel (“the applicant”).

Background

2. The relevant background is derived from the Court Book (“CB”) and is as follows. The applicant is an Indian national who first entered Australia in July 2006 as the holder of a student visa.
3. On 28 August 2008 the applicant applied for the visa (CB 1 to CB 11). He was assisted by a migration agent (CB 4).
4. The applicant provided relevant details, including that he had completed a masters degree in Australia (Central Queensland University) in “Master of Information System” (CB 9).
5. It was a criterion for the grant of the visa that the Minister be satisfied that, at the time of application, the applicant had applied to the relevant assessing body for an assessment of his skills for the nominated occupation for the purposes of the application. (See cl.485.214 to the Migration Regulations 1994 (Cth) (“the Regulations”) as at the relevant time for this matter.)
6. In his application form the applicant had provided as the “Nominated Occupation”: “Family Counsellor” (CB 8.8).

The Delegate

7. On 16 April 2009 an officer in the Minister’s department wrote to the applicant requesting that he provide certain documents. These included a: “Skills Assessment for your nominated occupation and proof that you had applied for your Skilled Assessment before lodging your visa application on 28 August 2008.” (CB 20.5.)
8. The applicant’s agent responded on the same day and provided certain documents. These included a copy of a skills assessment by “VETASSESS”. On this document “Nominated Occupation” was stated as: “Environmental Health Officer” (CB 40.5).
9. On 13 May 2009 the Minister’s delegate refused the grant of the visa (CB 52 to CB 58). The reason was that she found that the applicant did not meet one of criteria relevant to the grant of the visa: cl.485.213 of Sch.2 of the Regulations.
10. This subclause was at the material times in the following terms (as at the relevant time):
    • “485.213 The following requirements are met:
      • (a) the applicant satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made;
      • (b) each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant’s nominated skilled occupation.”
11. The reasoning was that although the Master of Information Systems qualification met the two year study requirement (as required by cl.485.213), she could not be satisfied that this qualification was closely related to the nominated skilled occupation of “Family Counsellor” (CB 56.8).
12. On 15 May 2009 the applicant’s agent wrote to the Minister’s department (by email – CB 59 to CB 61). Attached was a form headed: “Notification of incorrect answer(s)” (CB 62 to CB 64). In this form the agent, on behalf of the applicant, stated:
    • “13. List details of the information provided which was incorrect and provide the correct information.
    • 1. Information which was incorrect
      • ‘Nominated occupation
      • Family Counsellor
      • Environmental Health Officer
      • (ASCO 2543-13)
    • Correct details
      • ‘Computing professional
      • 2231-79’”
13. The agent provided on explanation on behalf of the applicant (CB 59.8 to CB 60.2):
    • “...
    • I refer to this application.
    • My client has instructed me to lodge this completed Form 1023-Notification of Incorrect Answer(s). The correct answer for his nominated occupation is Computing Professional 2231-70 (ICT Recent Graduate).
    • The reason for the mistake is as follows:
    • He does not know how Family Counsellor appeared in the application form as his nominated occupation, as he has never has such intention to choose it as his nominated occupation. Nor did he seek any skill assessment for this occupation. On 16 April 2009 your office received a skill assessment result of Environmental Health Officer, and you took it as my nominated occupation. It is another mistake my agent’s staff has made when they responded to your request, as it is not my intention or my authorization that this should be my nominated occupation. The staff made this mistake as there are three skill assessment results in my file: Chemist, Environmental Health Officer and Computing Professional, and she is so careless that she did not check it with my agent and me but just e-mail that Environmental Health Officer. So the mistake resulted.
    • I wish that the Department noted this mistake, and we would appreciate it if you could reconsider this application.
    • ...”
14. Also sent at this time were skills assessments in relation to his Masters of Information Systems from the assessing body Australian Computer Society (“ACS”) (dated 18 December 2008) (CB 64), an assessment of a science degree obtained in India relevant to a “nominated occupation” of chemist from “VETASSESS” (CB 65), and an assessment relevant to Environmental Health Officer (CB 66).
15. The Minister’s delegate, as submitted now by the applicant, properly referred the applicant to the Tribunal (CB 59.3).

The Tribunal

16. The applicant applied for review by the Tribunal on 15 May 2009 (CB 68 to CB 75). He continued to be represented by the same agent (CB 73).
17. His agent made written submissions dated 14 January 2011 (CB 86 to CB 90). The applicant attended a hearing before the Tribunal on 20 January 2011 (see [20] at CB 101).
18. The Tribunal affirmed the delegate’s decision on 21 January 2011 (CB 98 to CB 107).
19. The Tribunal was satisfied that the applicant’s course (Master of Information Systems) did meet the two year study requirement. However, as this was the only qualification obtained by the applicant in Australia, it was the only qualification that could meet the relevant requirement in cl.485.213 of the Regulations.
20. Further, to meet cl.485.213(b) the requirement was that this qualification be “closely related” to the applicant’s nominated skilled occupation ([33] at CB 103).
21. The Tribunal noted that in his application form the applicant had nominated “Family Counsellor” as his relevant nominated occupation. Further, that he had subsequently notified the Minister’s department: “that this was an error and that he never intended to nominate that occupation”. That it was a mistake by his agent and made without his authority ([34] at CB 103).
22. The Tribunal did not accept this argument. Its reasoning was helpfully set out in the applicant’s written submissions to this Court:
    • “The Tribunal reasoned, relevantly, as follows:
      • (a) A requirement in making a valid application for skilled migration visas is the nomination of a skilled occupation on the visa application form (RD 104 [35]). [RD: Relevant Documents: CB]
      • (b) It does not appear possible for an applicant to change his nominated skilled occupation during the processing of the visa application because ‘it is an essential requirement... that an applicant nominate a skilled occupation at the time the visa application is made’ (RD 104 [36]).
      • (c) The use of the definite article ‘the’ in Sch 2, as opposed to the indefinite article ‘a’, suggests that the criteria ‘are referring to a particular nominated skilled occupation and that, once nominated, the skilled occupation has to be the same occupation throughout the application process as that initially nominated on the visa application form’ (RD 104 [27]).
      • (d) None of the steps taken by the Applicant in connection with the application for the Visa ‘make any reference to the occupation of a Computing Professional’ (RD 104 [38]).
      • (e) The skills assessment in respect of ‘Computing Professional’ was not received until two and a half months after the application for the Visa was made (RD 104 [39]).
      • (f) In these circumstances, and as cl 485.214 (which concerns application for a skills assessment) is a time of application criterion, the Tribunal rejected the Applicant’s argument that he intended to nominate the occupation of ‘Computing Professional’ and that the nomination of another occupation was an inadvertent mistake by the agent’s staff member (RD 104 [40]).
      • (g) Form 1023 is available to notify incorrect answers given in the visa application form. However, that did not apply to this case because the Applicant did not provide ‘incorrect answers’ but ‘had simply made an error in selecting the skilled occupation to nominate in his visa application’ (RD 105 [42]).
      • (h) Even if the Tribunal were to accept that there had been a mistake in selecting the occupation, there is not legislative mechanism that enables the Applicant to change his nominated skilled occupation after the visa application is made (RD 105 [42]).
      • (i) The submission of Form 1023 cannot overcome an error made during the visa application process in relation to a matter that was required for the making of a valid visa application (RD 105 [43]).”
23. Ultimately the Tribunal found that the applicant had nominated “Family Counsellor” as the occupation for the purposes of the application, and it was not satisfied that the applicant’s qualification of Master of Information Systems was “closely related” to the nominated occupation. It therefore affirmed the delegate’s decision ([44] to [52] at CB 105 to CB 106).

Before the Court

24. The application before the Court is in the following terms:
    • “1. The decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent erred:
      • (a) in finding that the skilled occupation, once nominated, has to be the same occupation throughout the application process as that initially nominated on the visa application form;
      • (b) in holding that there is no legislative mechanism that enables an applicant to change the nominated skilled occupation after the visa application is made;
      • (c) in failing to hold that the Applicant, by submitting a completed Form 1023 pursuant to s 105 of the Migration Act 1958 (Cth) as notification of an incorrect answer given on the application form, had changed the nominated skilled occupation;
      • (d) in proceeding to consider the Applicant’s visa application on the basis that the skilled occupation was that initially nominated on the visa application form;
      • (e) in failing to consider the Applicant’s visa application on the basis that the skilled occupation was that nominated on the visa application form as corrected by the completed Form 1023;”
    • [Note: at 1(c) “changed” is to be read as “corrected” – leave granted.]
    • [Note: at 1(b) “change” is to be read as “correct” – leave granted.]
25. Before the Court Mr HPT Bevan of counsel appeared for the applicant. Mr J Smith of counsel appeared for the first respondent.

The Complaint

26. The applicant says the Tribunal’s error is as follows. The Tribunal understood that the requirement in making a valid application is that the applicant must nominate a skilled occupation on the visa application form.
27. The Tribunal further reasoned that it did not appear possible to change the nominated occupation during the processing of the visa application. The basis for this was that it is an essential requirement that a visa applicant nominate a skilled occupation at the time of making the application, otherwise, there would not be a valid application for that skilled visa.
28. The Tribunal relied on item 1229 of Sch.1 of the Regulations, which set out the requirements for making a valid application for the visa in question. What the Tribunal drew from this was that this provision uses the indefinite article: “a”, throughout its language in referring to “a skilled occupation”.
29. The Tribunal reasoned that once “a” skilled occupation is nominated it must be the same throughout the process. The Tribunal considered that in Pt.485 of Sch.2 to the Regulations, which sets out the relevant criteria to be satisfied at the time of application, and at time of decision, the relevant language changes to the use of the definite article: “the” – as in “the skilled occupation”. It referred to cl.485.213, 485.214 and 485.221 of the Regulations.
30. The Tribunal found that none of the steps taken by the applicant in the making of his application made any reference to the occupation of computing professional. (See below the Tribunal’s view of the “Form 1023” at CB 62.)
31. The applicant attacked this finding and said it was wrong on the basis that in the application form the applicant made reference to the Master of Information System qualification, and that this was sufficient to indicate that the applicant’s intention was to rely on the occupation of “computing professional” for the purpose of his relevant nominated occupation.
32. The Tribunal’s response to this was to reject the applicant’s argument that he intended to nominate computing professional as it found significant that the presentation of the ACS skills assessment, relevant to computing professional, was not until two and a half months after the application was made. That is, with reference to the letter from ACS as the relevant assessing body, the application for the skill’s assessment to it was received by ACS on 10 November 2008 (CB 64). The application for the visa was made earlier on 28 August 2008.
33. This was significant because the Tribunal reasoned that, as cl.485.214 (“The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant processing authority”) was a time of application requirement, where the applicant had made no application for a skills assessment as a computer professional at that time he could not have intended to nominate “computer professional” as the “nominated occupation” in circumstances where the applicant had plainly not applied at the relevant time for an assessment of skills relevant to a nominated occupation of “computer professional”.
34. The applicant’s line of attack here is to challenge the Tribunal’s analysis and findings in relation to the “Form 1023”. The Tribunal found that this form is available to applicants to notify of “incorrect answers” given in the visa application form.
35. But in the current case the Tribunal found that the applicant did not provide “incorrect answers”, but had simply made an error in the selection of the skilled occupation to nominate in the application form. The Tribunal found that the mechanism to which “Form 1023” applied did not allow for that purpose.
36. The Tribunal further reasoned that, even if it were to accept that the applicant and his agent had made a mistake, there was no legislative mechanism available that enabled the applicant to change his nominated skilled occupation once the visa application is made. In these circumstances “Form 1023” could not overcome an error or mistake made during the visa application process in relation to a matter that was required for the making of a valid application.
37. The applicant’s attack here is that the legal error made by the Tribunal was in holding that even by submitting the “Form 1023” the applicant could not “correct” his nominated skilled occupation to be “computer professional”. The Tribunal’s error therefore was to not then proceed to consider the application on the basis of “computing professional” as the nominated occupation. This was said to be the failure to properly exercise its jurisdiction.
38. The legislative mechanism that was relevantly available is as follows, with reference to Div.3(C) of Pt.2 of the Act (“Visas based on incorrect information may be cancelled”) (as at August 2008).
39. The relevant scheme involves:
    1. Section 98 - Completion of visa application:
       • “A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.”
    2. Section 99 – Information is answer:
       • “Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.”
    3. Section 100 – Incorrect answers:
       • “For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.”
    4. Section 101 – Visa applications to be correct:
       • “A non-citizen must fill in or complete his or her application form in such a way that:
       • (a) all questions on it are answered; and
       • (b) no incorrect answers are given or provided.”
    5. Section 105 – Particulars of incorrect answers to be give:
       • “(1) If a non-citizen becomes aware that:
         • (a) an answer given or provided in his or her application form;
         • ...
         • was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
       • ...”.
40. In short, the argument was that the relevant statutory scheme imposes an obligation on an applicant to provide “correct” information. The consequences of not doing so are serious. This is in circumstances where the relevant legislative scheme provides that an “answer” to a question posed in an application form can still be “incorrect”, even if the person providing it does not know it to be so.
41. Further, in circumstances where, for example, s.105(2) envisages the obligation to continue even after a visa has been granted, then the obligation to provide, or correct, an incorrect answer is a continuing obligation.
42. In the current case, the applicant says he did not become aware of the “incorrect information” having been provided until after the delegate’s decision was made (13 May 2009). At that point the obligation to “correct” the “incorrect information” was engaged. The applicant says he then acted as soon as possible to comply with this obligation by lodging the “Form 1023”.
43. Therefore, contrary to the Tribunal’s assertion, this is the legislative mechanism by which “incorrect” answers on application forms can be “corrected”.
44. A further attack is on the Tribunal’s approach said to arise from the language of item 1229 of Sch.1 and cl.485 of Sch.2 to the Regulations.
45. Mr Bevan took issue with the Tribunal’s reliance and understanding (as set out above at [27] to [29]) of the use of the indefinite article as found in item 1229, and in particular the Tribunal’s conclusion that the nominated occupation cannot be changed (or corrected) because of this language.
46. The submission was that what the legislation is really saying with the use of the indefinite article is that an applicant must nominate “one” skilled occupation, and not more than one, for the purposes of making a visa application. That is, in order to make a valid visa application an applicant must nominate “a” skilled occupation, not “two” or more. The object of item 1229 was said to be that, for example, in circumstances where an applicant may have a number of qualifications, only one can be nominated for the purpose of making a valid visa application.
47. In all, the applicant made two attacks on the Tribunal’s reading and application of cl.485, to the extent that the Tribunal took the view that these provisions refer to “the nominated occupation”, it means that it must be the same nominated occupations for the entire process.
48. First, the clause uses the definite article to refer to “the” occupation nominated in the application form. This does not necessarily mean that the nominated occupation cannot be corrected using the legislative scheme at Div.3(C) of Pt.2 of the Act.
49. Second, as against these provisions there is no express prohibition in the Act, or the Regulations, which provides that the nominated occupation cannot be changed during processing.
50. Mr Bevan advanced the submission that Parliament has made no such provision because it can be seen where, for example, in light of the “two year” requirements (relating to the obtaining of the assessment of qualifications), if an applicant were to discover at a late stage that an incorrect answer had been provided in terms of the nominated occupation, then nothing could be done to address this.

Consideration

51. It must be said that the issue raised in this case, and the consideration necessary to resolve it, highlights again the complexity and rigidity of the relevant legislative scheme as it applies to student and, as here, student graduate visas.
52. Certainty in any legislative scheme is a worthwhile objective. It provides a confidence, an assurance, and an inevitability of outcome if a certain process is to be followed such that applicants and decision-makers can proceed in the knowledge of what needs to be done.
53. This is to be compared with rigidity in a legislative scheme which provides for inflexibility and severity, such that Mr Bevan’s submission about the injustice that may result is undoubtedly an attractive argument. As indeed were other parts of the submissions made by the applicant.
54. Unfortunately for the applicant, even if the view were to be taken that the relevant legislative scheme was rigid as opposed to certain, it is the scheme that Parliament has put in place and is to be applied by the Tribunal, and of course this Court.
55. In the current case, I agree with the respondent that this application does not succeed for a number of reasons.
56. The first is what Mr Smith described as the “materiality” issue. That is, even if there had been some mistake in some part of the Tribunal’s analysis, it could not in the circumstances have made any material impact on the outcome. The alternative expression of this is that the outcome was dictated by the relevant statutory scheme (whether it be described as certain or rigid).
57. Mr Smith relied on the importance of the time of application criteria to focus on whether, in the circumstances, the applicant would ever have satisfied the relevant and necessary criteria for the grant of the visa and as relevant to the Tribunal’s factual finding as to what was intended as a “nominated occupation”.
58. A number of things can be drawn from parts of the time of application criteria. First, cl.485.21 sets out the criteria that must be met as at the time of application.
59. Second, cl.485.213(a) includes that an applicant must satisfy the two year study requirement in the period six months ending on the day before the application for the visa is made.
60. Further, at cl.485.213(b), that the qualification used to satisfy the requirement in 485.213(a) must be closely related to the applicant’s nominated skilled occupation.
61. In the current case the application for the visa was made on 28 August 2008. The study requirement, as was conceded by the Minister, was satisfied within the requisite six month period.
62. However, the applicant did not, and importantly could not be said to, satisfy cl.485.214. Noting again that this requires the Minister (or relevantly the Tribunal) to be satisfied that the applicant has at the time of making the application applied for an assessment of the nominated skilled occupation by a relevant assessing authority.
63. The Minister submitted that this immediately raises the question as to what applications for such assessment had been made in the current case as at 28 August 2008, such that, relevantly, the Tribunal could reach the requisite level of satisfaction.
64. Mr Smith submitted that the only evidence submitted in the application form itself as to an application for a skills assessment was that on 2 July 2008 the applicant applied to VETASSES for assessment of qualifications as a “Family Counsellor” (CB 8). Mr Smith emphasised that there was no “Form 1023” lodged to say that the detail of this was incorrect. That is, that the applicant did not apply for such a skills assessment on that date.
65. While the distinction between that circumstance and the applicant’s reference in the “Form 1023” that he did not intend to nominate “Family Counsellor” as the nominated occupation, may appear at first glance to be a fine distinction. It is nonetheless, in my view, a real and substantial one.
66. Even if the applicant, as he now says, did not intend this nomination, it says nothing about whether or not he made any application previously to the relevant assessing authority.
67. This point is emphasised when regard is had to the matter of “Environmental Health Officer”. This also was referred to in the “Form 1023” as being information incorrectly given (CB 63.3).
68. Here not only did the applicant provide evidence of having applied for an assessment of skills relevant to this occupation, but that such an assessment had been made, and notified to him on 2 July 2008 (CB 40).
69. I agree with Mr Smith that nowhere during the process before the delegate did the applicant provide any evidence that he had applied for a skills assessment as a “computing professional”.
70. Nor importantly did the subsequent “Form 1023”, notwithstanding the applicant’s assertion that the “correct” nominated occupation was “computer programming”, provide any evidence that he had in fact asked for a skills assessment relevant to that occupation up to the time of the making of the application for the visa.
71. The evidence attached to the “Form 1023”, presumably sent in support of the applicant’s contention that he had intended to nominate “computing professional” as the nominated occupation, does include an assessment from “ACS” (there was nothing to say it was not the relevant assessing authority) (see the letter at CB 64).
72. However, as that letter makes clear, the applicant’s application to ACS for that assessment was made on 10 November 2008. Plainly it had not been made as at 28 August 2008.
73. What the applicant hoped to achieve by also sending to the Minister’s department at that time (a time when plainly he says he realised the mistake made) copies of assessments by VETASSES showing the nominated occupation as “Chemist” (CB 65), and “Environmental Health Officer” (CB 66) is never made clear.
74. In the “Form 1023” the applicant states, amongst other things: “nor do I intend to lodge Environmental Health Officer as my nominated occupation in this 485 visa application...”. Why he then attaches an assessment for this occupation remains unexplained.
75. It is at this point where the submission made by Mr Smith and described as the “materiality” point, and part of the applicant’s attack on the findings of fact made by the Tribunal, intersect.
76. The reason that the Tribunal affirmed the delegate’s decision was essentially that, as at the time of the making of the application for the visa, the evidence before it was that the applicant had not made any application for assessment as a computing professional.
77. While the Tribunal used this finding (“the two and a half months late” finding) to, in part, reject the applicant’s argument that he intended to nominate “computing professional” as at the time of visa application, what remains is that, as Mr Smith submitted, that finding of fact was fatal to the applicant’s application.
78. I should note that attached to submissions made to the Tribunal by the migration agent (CB 86 to CB 90) is another copy of an assessment made by ACS (CB 91). This letter is dated 18 December 2008 and makes reference to an assessment of the applicant’s Master of Information Systems qualifications. Importantly, the application for this assessment was made on 8 November 2008, again well after the date of the making of the visa application.
79. It is the case that the Tribunal reports that, at the hearing before it, the applicant said that “he could not remember” when he had applied for the ACS skills assessment, but that “... it was before the visa application.” ([25] at CB 102.)
80. Ultimately on being questioned by the Tribunal, and in particular as to the ACS letter which indicated that he had applied for that assessment in November 2009, the applicant’s evidence was that “... he entrusted everything to his agent and his agent was responsible” ([25]).
81. In this regard the representative’s submission, apart from pressing that a mistake had been made (see for example at [29]) was that: “... Family Counsellor is the wrong occupation and there is no need to make a submission on whether the Master of Information Systems was closely related to the occupation of Family Counsellor.” ([30] at CB 103.)
82. The applicant’s evidence to the Tribunal then was ([31] at CB 103):
    • “... The applicant said that before he did not have any goal and he applied for the VETASSESS assessment because he thought about applying for another visa but he later decided to move to IT.”
83. As Mr Smith submitted there were two VETASSES assessments submitted, neither of which related to the occupation of “computing professional”.
84. What is contained in the “Form 1023” also does not assist the applicant. There is nothing in what the applicant has put on that form upon which the Tribunal could have been satisfied that the applicant had made an application for a computing professional related skills assessment prior to the time of the making of the visa application.
85. Of course care needs to be taken by the Court not to engage in its own findings of fact and to conduct a merits review of the delegate’s decision. In this light, the Tribunal did not make any express finding (as would clearly have been open to it to do) that the application could be refused on the basis that, at the time of the application for the visa, no application for a relevant skills assessment for computing professional had been made.
86. This leads, therefore, to an examination of the reasoning and actual findings made by the Tribunal which support its conclusion.
87. The Tribunal found that the applicant had nominated the occupation of “Family Counsellor” in his visa application. It arrived at this finding on the basis that the applicant actually nominated this as his “nominated occupation” in the application form, and rejected his arguments that such a nomination was a mistake, and further that it was a mistake that could be “corrected” by lodging the “Form 1023”.
88. Before the Court the applicant presses two errors said to have been made by the Tribunal. The first is that it was wrong to find that the applicant intended to nominate “Family Counsellor” as his occupation and not “Computer Professional”. The second, that it made a mistake in saying that a nominated occupation could not be corrected during the processing of the visa application.
89. The Tribunal’s reasoning in relation to the first attack is that, if the applicant had intended to nominate “computing professional”, then there would have been evidence to support this. However, to the contrary, the Tribunal found, on the state of the evidence before it, that it could not be so satisfied. In other words, it was unable to find that a mistake had been made and that “computing professional” was not the correct answer.
90. The bases for the Tribunal’s findings in this regard are as set out above. In summary, if it had been the applicant’s intention to insert “computing professional” then he had made no application for the relevant skills assessment prior to the making of the visa application. A critical step without which he could not satisfy an important criterion.
91. It is the case that in the visa application form the applicant made reference to a number of his academic qualifications, including “Master of Information Systems”. The Tribunal found that there was no reference in any of the documents that accompanied the visa application, or submitted during processing, that referred to “computing professional”.
92. It may be argued that the reference to the Master of Information Systems in the visa application form may be said to constitute some indirect reference to “computing professional”.
93. The Tribunal was plainly aware of the inclusion of this reference in the application (see [15] at CB 100 of its decision record). It cannot be said to have overlooked this.
94. It is not open to this Court to substitute its own findings of fact for those of the Tribunal. That the Tribunal did not see this reference as preventing it from saying that there was “absolutely nothing” in the relevant documentation that referred to “computing professional” as the nominated occupation was certainly open to the Tribunal on what was before it.
95. A different Tribunal may have sought to draw some inference from the statement of this qualification that it was possibly connected to computer professionalism, and whether it could be inferred by its inclusion in the visa application that the applicant wanted to nominate this as his occupation. Admittedly this requires some connective leaps to be made.
96. But that this Tribunal chose not to do so does not reveal jurisdictional error. In the circumstances, the Tribunal’s finding that there was “absolutely nothing” in the relevant documentation to support the applicant’s contention that he intended to nominated “Computer Professional” was at least reasonably open to it.
97. The inclusion of one qualification in amongst others (with accompanying skills assessments) does not necessarily indicate an intention to rely on a nominated occupation relevant to that qualification.
98. Such findings of fact are for the Tribunal to make, were reasonably open to it to make, and are clearly within jurisdiction. Noting of course, also in this regard, that even if some error in fact finding of this nature had occurred it would have been an error within jurisdiction.
99. In light of this it was also reasonably open for the Tribunal to find it significant that the evidence presented as to the skills assessment relevant to computing professional showed that the application for it post-dated the visa application by some months.
100. In these circumstances I cannot see error in the Tribunal’s rejection of the applicant’s explanation, and its finding that “Family Counsellor” was not submitted in error.
101. The second attack on the Tribunal was to take issue with what was said to be its finding that there was no legislative mechanism for the applicant to “correct” previously provided information which was “incorrect”.
102. I agree with Mr Smith that the answer to this attack by the applicant arises from a plain, and certainly a fair, reading of the Tribunal’s relevant analysis and finding.
103. The words: “... the Tribunal does not believe there is any legislative mechanism that enables the applicant to change his nominated skilled occupation after the visa application is made...” ([42]) plainly gives rise to the applicant’s complaint. This is particularly so when linked to the Tribunal’s earlier analysis of the placement, in different but relevant parts of the regulatory scheme, of the indefinite and definite articles.
104. Here a separation must be made between these two parts of the Tribunal’s analysis. The issue of the indefinite and definite articles, and their importance as to how item 1229 and cl.485 should be understood, was directed to the importance (“fundamental”) of what occupation is nominated by the visa applicant at the time the application is made.
105. The Tribunal’s conclusion in this regard was that, once nominated, the skilled occupation remains throughout the processing of the application. The reference at [42] (CB 105) to “change his nominated skilled occupation” must be understood in that context.
106. What the Tribunal was otherwise focussed on at [42] (and at [43]) was plainly whether the mechanism available through “Form 1023” was applicable to the current circumstances in the way that the applicant and his adviser had submitted that it was.
107. Here, the Tribunal’s analysis, as Mr Smith correctly in my view submitted, drew the distinction between the mechanism inherent in “Form 1023” to notify of “incorrect” answers given in, relevantly, the application form, and the different circumstance which the Tribunal found was before it. Namely, that the applicant had not provided an “incorrect” answer at the time of application which was therefore amenable to being “corrected” by the subsequent provision of a “correct” answer through the facility of “Form 1023”.
108. The nomination of “Family Counsellor” in the application form may have been an error, but the Tribunal reasoned that this does not mean it was, in the circumstances existing at the time of the application, an “incorrect” answer.
109. I understand the Tribunal’s analysis to allow for the amendment of an “incorrect” answer in the application form, but that there is no mechanism to change a “correct” answer (“correct” at the time that it is given) but which subsequently the applicant chooses to “change”.
110. I cannot see error in the Tribunal’s analysis of the relevant parts of Sch.1 and Sch.2 to the Regulations to the affect that, once nominated, the nominated occupation cannot be “changed”. The Tribunal did not say that it cannot be “corrected” if indeed it was incorrect. It otherwise found that, in the circumstances, it had not been incorrect at the time of the visa application being made.
111. As Mr Smith correctly submitted, on at least a fair, if not a plain, reading of the Tribunal’s analysis, the Tribunal found there was actually nothing to correct. That is, nothing that was available to be corrected by the use of “Form 1023”.
112. The distinction between “correct” and “change” is critical here, and provides the answer to this part of the applicant’s attack.

Conclusion

113. With the benefit of legal assistance and representation the applicant has put forward a well argued and interestingly constructed argument in support of the sole ground of the application and its various parts.
114. As I cannot discern jurisdictional error in what the Tribunal has done, as pleaded by the applicant, I will make an order dismissing the application to the Court.

I certify that the preceding 114114one hundred114114fourteeneightyone hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 1 June 2011