Carraro (Migration)

[2024] AATA 212

Carraro (Migration) [2024] AATA 212 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Arianna Carraro
Mr Luca Marzorati

CASE NUMBER:  2217822

HOME AFFAIRS REFERENCE(S):  BCC2022/3745201

MEMBER:Ian Berry

DATE:8 February 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 08 February 2024 at 2:50pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – qualification completed within 12 months before application made – qualification not specified in instrument – diploma at lower level than specified AQF level 7 graduate diploma – applied in this stream because it did not require work skills assessment – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.231(1), (3)(a)

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 1 December 2022 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 September 2022. 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 the criteria in Subdivision 485.23.

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl 485.231 of Schedule 2 to the Regulations because the qualification relied on was not a qualification of the AQF[1] which must be of a level 7 or more.

   [1] Australian Qualifications Framework

4. The applicants appeared by mobile phone, before the Tribunal on 15 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from partner Mr Luca Marzorati.  An interpreter was present to assist in interpreting however the applicants had a sufficient understanding of English.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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, and for the applicant's study for the qualification or qualifications to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

   Applicant’s claims

7. The applicant appraised the Tribunal as to why she chose to make her application in the Post-Study Work stream. The timing of her application was around COVID-19 and realised she could not attain a skills assessment and thought it would be appropriate to apply in the Post-Study Work stream because it did not require such a certificate. Advice from a migration representative was sought though the Tribunal did not enquire as to when that advice was sought.

   Does cl 485.231 apply to the applicant?

8. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

   Does the applicant hold a specified qualification?

9. Clause 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 is IMMI 13/013. In this case, the applicant holds a Diploma of Early Childhood Education and Care which is not a qualification specified in that instrument.

10. During the hearing, and after discussion with the applicant about her qualifications, the Tribunal enquired whether she was aware of the status of her Diploma – a Diploma or Graduate Diploma.

11. Because the applicant was unaware, the Tribunal suggested she should make enquiries with her Canberra Institute of Technology (CIT) and return to the Tribunal with that clarification.

12. On 2 December 2023, the Tribunal received from a text message from CIT International to the applicant stating that a Graduate Diploma is at a higher level compared with the Diploma (based on the AQF), confirming the applicant’s Diploma is at a lower level.

13. The result is there is no evidence before the Tribunal of the applicant having the necessary and appropriate level 7 or higher qualification under AQF.

14. Therefore the applicant does not satisfy cl 485.231(1).

15. 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.

16. In respect of the second named applicant, not including the primary applicant, the Tribunal notes there is no information before it to suggest that second named applicant meets the primary criteria for the grant of the visa. The second named applicant applied for the visa because he was a member of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the second named applicant, as he was a member of the family unit of a person who did not satisfy the primary criteria for the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Ian Berry
    Member