Bailey (Migration)

[2023] AATA 3970

Bailey (Migration) [2023] AATA 3970 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prajay Pradeep Bailey

REPRESENTATIVE:  Mr Walson Mathew (MARN: 1460591)

CASE NUMBER:  2112777

HOME AFFAIRS REFERENCE(S):          BCC2020/499786

MEMBER:Namoi Dougall

DATE:22 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 August 2023 at 12:06pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – specified qualification – Advance Diploma of Hospitality Management – IMMI 13/013 – applied for the wrong stream – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.231

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 17 September 2021 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 19 February 2020. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the applicant’s qualification was not of an Australian Qualification Framework level seven or higher.

4. The applicant appeared before the Tribunal on 22 August 2023 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

Does the applicant hold a specified qualification?

1. Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose IMMI 13/013. In this case, the applicant holds an Advance Diploma of Hospitality Management from Le Cordon Bleu, Culinary Arts Institute for study from 28 September 2017 to 31 December 2019 which is not a qualification specified in that instrument.

2. On 14 August 2023, the applicant’s representative provided the Tribunal with a submission. It was submitted that at the time of his visa application the applicant was not aware that he was not qualified for a post-Study Work stream visa and should have applied for a Graduate work stream visa which he was qualified. It was further submitted that this could have been rectified if his application had been reviewed and the applicant contacted about his error. Instead, the Department processed the application and refused the application. This meant by the time he received the refusal he no longer qualified for a Graduate Work stream visa. The Department should have allowed the applicant the ability to reapply for the correct visa or waived the time restriction. It was further submitted that applications of this nature should not be accepted as valid applications which would give ample time for errors to be corrected.

3. At the hearing the Tribunal explained the requirement of cl.485.231 and the applicant said it was human error ticking the wrong box. He has all of the requirement documents for the Graduate stream.

4. The Tribunal is satisfied that the applicant’s Advance Diploma is not a qualification specified in the relevant instrument. Accordingly, cl 485.231(1) is not met.

5. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

DECISION

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

Namoi Dougall
Member