Davey (Migration)

[2020] AATA 3178

Davey (Migration) [2020] AATA 3178 (8 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Darren Paul Davey
Ms Kimberley Anne Reay

CASE NUMBER:  1910787

HOME AFFAIRS REFERENCE(S):          BCC2019/1001720

MEMBER:Nicola Findson

DATE:8 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 08 June 2020 at 1:56pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –Post-Study Work stream – Australian study requirement not met – application was not accompanied by a skills assessment –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 54, 65, 349
Migration Regulations 1994, rr 1.03, 1.15, 2.26, Schedule 2, cls 485.224, 485.223, 485.231, 485.311

CASES
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shrestha v MHA [2019] FCA 1843
Shi v Migration Agents Registration Authority [2008] HCA 31
Vishnumolakakala v Minister for Immigration [2006] FMCA 1209

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 12 April 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 February 2019. 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 (the Regulations), including criteria in different streams.

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 delegate was not satisfied that the applicant held a specified qualification that satisfied the Australian study requirement.

4. The applicants appeared before the Tribunal on 8 October 2019, to give evidence and present arguments.  

5. The applicants were represented in relation to the review by Counsel, also a registered migration agent, Mr Lorenzo Boccabella.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In this case, the applicants specified the Post-Study Work stream when making their visa application. A criterion for the Post-Study Work stream includes cl.485.231 of Schedule 2 to the Regulations. This clause 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.

8. On the day of the scheduled hearing, the Tribunal received a pre-hearing written submission from Mr Boccabella.  It was submitted, among other things, that a mistake had been made by the applicants’ migration agent when lodging the application.  Specifically, the Post Study work stream had inadvertently been applied for rather than the Graduate work stream.  It was submitted that, having regard to s.54 of the Act as well as the key information provided by the applicants to the Department, the applicants visa application was for all practical purposes an application for a subclass 485 visa in the Graduate work stream, and not the Post-Study work stream.

9. Additional material accompanied the applicants’ submission. The Tribunal received a statutory declaration sworn on 3 October 2019 by the applicants’ migration agent, Mr John Adams, in which he declares that in acting for the applicant in his subclass 485 visa application, he made an error in clicking on the Post-Study Work stream rather than the Graduate Work stream. Mr Adams declares that the applicant meets the requirements of cl.485.22 of Schedule 2 to the Regulations, being the primary criteria for the Subclass 485 visa in the Graduate Work stream, and that all of the material in the visa application was concerned with satisfying the criteria of the Graduate Work stream. The Tribunal was provided with a statement of the applicant dated 7 October 2019 confirming that his visa application was “centred on and only about the nomination of the occupation of a bricklayer for a visa in the Graduate Work stream”.  The Tribunal was also provided with a Trades Recognition Australia provisional Skills Assessment in respect of the applicant for the occupation of Bricklayer dated 11 June 2019.

10. In his written submission, Mr Boccabella submits that in Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi) the High Court unanimously concluded that the Tribunal must also look at the facts and evidence in existence at the time of its decision in order to arrive at the correct and preferable decision, and, that this decision provides a further basis for the Tribunal to find that the visa application was an application for a visa in the Graduate Work stream.  He submits that following the reasoning in Shi, the Tribunal “steps into the shoes of the Minister” for the purposes of s.55, and in exercising its power under s.349 of the Act, all material before it becomes part of the visa application.  It is contended that the Tribunal now has before it, as part of the visa application, the evidence of a statutory declaration sworn by the applicants migration agent, a “confirmatory nomination” by the applicant, and a Skills Assessment dated 11 June 2019 and completed in respect of the applicant by Trades Recognition Australia.

11. Mr Boccabella submits that he was Counsel for an applicant in a comparable case – Sharma v Minister for Immigration & Border Protection, BRG368/2017 - “albeit the other way round” where “the applicant mistakenly clicked on the box for the Graduate Work stream rather than the Post-study Work stream”, and in which the visa refusal was ultimately set aside by the Tribunal.

12. He submits that cl.485.224, is met in this case given that the applicants application was lodged on 27 February 2019, and his qualification was obtained on the basis of study in a registered course, between 1 January 2017 and 30 December 2018, while the holder of a student visa.  It is also submitted that clauses 485.221, 485.222 and 485.223 are met given the existence of the qualification and the Skills Assessment application lodged prior to the visa application and now before the Tribunal.

13. The issues to be determined by the Tribunal in the present case are: whether the applicant meets the requirements of cl.485.231; if not, whether the visa application can be assessed against the Graduate Work stream criteria; and if so, whether the criteria for the Graduate Work stream are met.  

    Does the applicant hold a specified qualification?

14. For the purposes of cl.485.231 the Minister has specified the qualifications in the instrument in writing, IMMI 13/013. It specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework (AQF) level seven or higher:

    (a)Bachelor Degree;

    (b)Bachelor (Honours) Degree;

    (c)Masters by Coursework Degree;

    (d)Masters by Research Degree;

    (e)Masters (Extended) Degree and/or;

    (f)Doctoral Degree.

15. The applicants have provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review.  It records that when applying for the visa the applicant declared that his most recently completed academic qualification in Australia was a Certificate III from the South Metropolitan TAFE, undertaken between 1 January 2017 and 30 December 2018. 

    Accompanying the visa application was a graduate certificate and record of results issued by the South Metropolitan TAFE on 27 November 2018, which certified that the applicant had fulfilled the requirements for the Certificate III in Bricklaying/Blocklaying and had completed the course on 27 November 2018.

16. The delegate found that the qualification the applicant sought to rely on for the visa (Certificate III in Bricklaying/Blocklaying) was not completed as a result of a total of at least two academic years study at the AQF level 7 or above, and so could not be used in and by itself towards meeting the Australian study requirement for the visa.  The delegate refused to grant the visa on the basis that cl.485.231(3) was not met.

    Evidence provided by the applicants at the hearing

17. At the hearing, the Tribunal discussed with the applicants the requirements of the relevant law and the circumstances in their case. It explained that it may form the view the applicant’s Certificate III does not meet cl.485.231(1) and therefore cannot be relied on to meet the Australian study requirement for the purposes of cl.485.231(3).  The Tribunal gave the applicants an opportunity to comment on these concerns.

18. The applicant acknowledged that he understood his qualification was not an eligible qualification specified by the Minister.  He indicated that he learned after the delegate had refused the visa application that his migration agent had “ticked the wrong box”, that being the Post-Study Work stream, during the online application process.  He indicated that it was always his intention to apply for the visa in the Graduate Work stream because he met the requirements for that stream, and, if the agent had “ticked the right box” he would not have been refused the visa. 

19. The Tribunal discussed with the applicant, that there are criteria specific to each of the two streams in Subclass 485.  The Tribunal explained that even if it considered the applicant did intend to apply in the Graduate Work stream - which differs from the Post-Study Work stream indicated on his application form - it would need to be satisfied that he met requirements specific to the Graduate Work stream.  The Tribunal explained to the applicant that the requirements for making a valid application for a Class VC visa are contained in item 1229 of Schedule 1 to the Regulations.  In relation to the Graduate Work stream an applicant must nominate a skilled occupation specified by the Minister in a relevant instrument. The Tribunal explained to the applicant that it may not be satisfied, in his case, that he had made a valid application in the Graduate Work stream, because he had not nominated a specified skilled occupation in his application. The Tribunal also explained that even if it came to the view that the validity requirements were met, the applicant may not be able to meet the primary criteria for the Graduate Work stream, specifically cl.485.222 to 485.224, which appear linked to the Schedule 1 requirement in item 1229(3)(k). In particular, the Tribunal explained that cl.485.223 requires that in the Graduate Work stream, an application must be accompanied by evidence that the applicant applied for an assessment of his/her skills for the nominated occupation by a relevant assessing authority. 

20. The applicant indicated to the Tribunal that he had relied on his migration agent to apply for the visa in the Graduate Work stream.  He reiterated that he met the requirements, including having applied for a skills assessment, for a visa in the Graduate Work stream. He told the Tribunal that he thought it was unfair that “ticking the wrong box” might stop him doing what he came to Australia to do.  He said he had spent a lot of money and worked very hard to attain his bricklaying qualification in Australia (after already spending many years working in this trade in the United Kingdom).  In addition, he told the Tribunal that he was 7 months through the 12 month Job Ready Program with Trades Recognition Australia – an employment based skills assessment program providing international student graduates with the opportunity to demonstrate their skills and job readiness in an Australian workplace.  He expressed his disappointment at the prospect of not being able to remain in Australia to complete this program because of a mistake made by his migration agent, who he had trusted to do the right job.

21. Mr Boccabella repeated aspects of his pre-hearing submissions during the hearing. As to whether the Schedule 1 requirements have been satisfied in respect of the Graduate Work stream, he submitted that it could be inferred that the applicant nominated the occupation of bricklayer on the basis of the inclusion of his bricklaying qualification when the application was made.  Notwithstanding, he submitted that in this case, the preferable course for the Tribunal would be to apply common sense and consider the applicants against the Graduate Work stream, in circumstances where it is clear the applicant intended to apply for Graduate Work stream, substantially complied with the visa application form, and looking at the application as a whole – having regard to all of the information now before the Tribunal – satisfies the requirements of the Graduate Work stream.

22. Further written submissions were also provided to the Tribunal following the hearing.  The post-hearing submission sets out that the Federal Court has consistently held that form should not triumph over substance and sets out relevant case law in this regard.  The submission also reiterates that that all documents submitted by an applicant in the visa application are part of the visa application.  Mr Boccabella submits, that by parity of this reasoning and pursuant to ss.54 and 55 of the Act, all material provided to the Tribunal becomes part of the visa application.  It follows, he contends, that all documents submitted in this visa application – including the applicant’s provisional Skills Assessment dated 11 June 2019 and the applicant’s written statement dated 7 October 2019 in which he nominates the occupation of bricklayer for the purposes of his visa application - show that the applicant applied for the visa and that he is eligible to be granted the visa on the basis of the Graduate Work stream.  

23. The Tribunal has had regard to the written and oral submissions made on the applicants’ behalf.  The Tribunal has carefully considered the applicants arguments regarding legislative interpretation, and the case law raised, in the context of this particular matter.  

24. The Tribunal has sympathy for the situation of the applicants and acknowledges the evidence before it that but for the error on the part of the applicants’ migration agent, their visa application would likely have had a different outcome.  The Tribunal also observes that its role, in conducting a merits review, is to come to the correct or preferable decision on the basis of the available information before it, and in accordance with the legislation and regulations at the time of its decision insofar as they apply to the date of the applicants’ visa application.  The Tribunal cannot extend its power beyond the application of the legislation and regulations to the facts and evidence presented to it. 

    Assessment of the evidence

25. On the basis of the study related material provided by the applicant the Tribunal is satisfied that the applicant has completed a Certificate III in Bricklaying/Blocklaying in November 2018. The Tribunal finds that this Australian qualification attained by the applicant is not a qualification specified in IMMI 13/013.

26. The Tribunal is therefore not satisfied that cl.485.231(1) is met.

    Can the visa be assessed against the Graduate Work stream criteria?

27. The Tribunal has had regard to the Procedures Advice Manual of the Department of Home Affairs (the Department) (PAM3): document ID VM-2196 ‘Schedule 2 visa 485’. Under the heading ‘Policy Intent’ it is stated that:

    The primary VC-485 applicant must choose to apply for one of its two streams:

    ·Graduate Work stream

    ·Post-Study Work stream.

    Applicants cannot change the stream they have selected after their application has been made.

28. The Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakakala v Minister for Immigration [2006] FMCA 1209, Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.

29. The Tribunal has considered the applicant’s submission that the Tribunal should apply common sense and consider the application against the Graduate Work stream, in circumstances where it is clear the applicant intended to apply for the Graduate Work stream and substantially complied with the visa application form.  In considering this submission, the Tribunal has had regard to the Explanatory Statement to the amending regulation that introduced the two streams in Subclass 485 which sets out that the intention was to ensure that applicants are only assessed against the criteria specific to the stream that was selected[1].  However, the Tribunal notes that the intention of the Explanatory Statement is not apparent in the express terms of the Regulations and therefore it is arguably open to the Tribunal to consider an applicant against a stream that differs from the one apparently indicated on the application form.  In addition, while there has been no judicial consideration of this issue, two matters (BRG368/2017 and SYG3039/2016) have been remitted by consent from the Federal Circuit Court and in each matter noted that the Tribunal committed jurisdictional error in finding that it was confined to considering the applicant’s application for a Subclass 485 visa only against the stream nominated in the visa application (the Graduate Work stream), in circumstances where the applicant substantially complied with the visa application form for the intended stream (the Post-Study Work stream). 

    [1] Explanatory Statement to SLI 2013, No.33 at p.8

30. The Tribunal has considered the evidence before it, including the oral evidence of the applicant as to the circumstances in which the Post-Study Work stream came to be selected in his visa application. The Tribunal has considered the applicant’s evidence that it was always his intention to apply for the visa in the Graduate Work stream because he was able to meet the requirements for that stream, however, his agent had not “ticked the right box”.  On the basis of the evidence before it, the Tribunal is satisfied and finds that the applicant did intend to apply for the visa in the Graduate Work stream, and that his failure to do so was an error on the part of his migration agent.

31. The Tribunal has also carefully considered the applicant’s claim that it could be inferred that he nominated the occupation of bricklayer in his application on the basis of the inclusion of his sole qualification – his bricklaying qualification – with the application.  Where there is no definition in the Regulations for the word ‘nominate’, and on the evidence before it, the Tribunal is prepared to accept in this case that the applicant did nominate a skilled occupation – that of bricklayer – at the time he applied for his visa.   

32. It follows that the Tribunal is satisfied the applicant has made a valid application for a Class VC visa in the Graduate Work stream. Accordingly, the Tribunal finds that the applicant’s visa application can be considered against the Graduate Work stream.

    Are the criteria for the Graduate Work stream met?

33. The primary criteria for a Subclass 485 visa in the Graduate Work stream include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation.

1. Clause 485.223 requires that when the visa 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’.

2. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). The relevant instrument is Legislative Instrument IMMI 18/051.

3. The Tribunal has found that the applicant nominated the occupation of bricklayer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia. 

4. During the review process, on 7 October 2019, the applicant provided to the Tribunal a positive skills assessment from Trades Recognition Australia, for the occupation of Bricklayer, dated 11 June 2019. 

5. However, the issue for the Tribunal is whether the visa application was accompanied by evidence that the applicant had applied for this skills assessment.

6. In considering this matter the Tribunal has had regard to relevant case law.  The Tribunal has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050 (Anand), in which Katzmann J considered a clause (cl.487.216) requiring that the visa application be accompanied by evidence and held that:

   It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Evidence supplied around the time of the application may be sufficient.  I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application.  It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application.  But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…

7. The Tribunal notes that the case of Anand dealt with an arguably more flexible formulation of the requirement, as the ‘time of application’ requirement in that case came under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself.  However, the criterion that applies in this case itself specifies that ‘when the application was made, it was accompanied by’ the specified evidence.  The Tribunal is of the view the use of the word ‘was’ locates the requirement clearly in the past.  During the course of the review, the submission was made that, by parity of the reasoning of the Federal Court and pursuant to ss.54 and 55 of the Act, all material before the Tribunal becomes part of the visa application. While the Tribunal does take any information provided into account at the time of its decision, there are some provisions which must be met before that time.  The Tribunal is of the view that the requirement of cl.485.223 is one of those provisions.

8. The proper construction of cl.485.223 was considered by the Full Court of the Federal Court in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (Khan), in which it was held that the clause ‘accompanied by’ establishes an objective temporal test, that is, an application is either accompanied by the necessary evidence or it is not (see also Shrestha v MHA [2019] FCA 1843). In Anand it was held that there was some elasticity to the words ‘accompanied by’ such that evidence supplied around the time of application may be sufficient.  In considering Katzmann J’s view of the word ‘accompanied’ in Anand, the Full Court of the Federal Court in Khan noted that the stretching of the concept may give rise to difficulties in determining how far a departure from the temporal requirement may be permitted, and that there would seem no need to stretch the concept.  In any event, the Full Court of the Federal Court held that whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant: see Khan at [15].

9. The Tribunal has had regard to the applicant’s evidence and submissions.  The Tribunal acknowledges that the applicant received a positive skills assessment, for the occupation of Bricklayer, from the relevant assessing authority, on 11 June 2019.  The Tribunal also acknowledges the applicant’s evidence at the hearing that he did make application for the skills assessment prior to making his visa application. However, cl.485.223 specifies the way in which the skills assessment requirement must be satisfied.  The difficulty in this case, as discussed during the hearing, is that because an alternate stream, with different requirements, was selected in the visa application form, the applicant would not have been required to complete the skills assessment section of the form nor prompted to provide evidence of either a skills assessment from the relevant assessing authority or evidence that he had booked to undergo a skills assessment.  In fact, there is no Departmental information before the Tribunal to indicate that the applicant provided evidence of having applied for a skills assessment for the nominated skilled occupation either at the time of application or at all.  The Tribunal also notes that in this case, and as discussed at the hearing, the applicant claimed for the first time that there had been a mistake in lodging an application for a Post-Study Work stream visa (rather than a Graduate Work stream visa) and provided to the Tribunal evidence in support of his claims - including the positive skills assessment - a day before the scheduled hearing on 7 October 2019, which was about 7 months after the applicant made his visa application and almost 6 months after the delegate’s refusal decision of 12 April 2019.  Taking into account the circumstances of this case and the authorities set out above, the Tribunal is not satisfied the applicant’s visa application was accompanied by the evidence required by cl.485.223.  The Tribunal is of the view that in this case there was not a close temporal connection between the visa application and the time the evidence was provided.  The Tribunal therefore is not satisfied that the application was accompanied by evidence that the applicant meets cl.485.223.

10. The Tribunal observes that it has no discretion within the Act or Regulations to waive the requirements of cl.485.223.

11. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.

12. The Tribunal has found that the applicant does not meet cl.485.231.  It has also found that, although the visa application can be considered against the Graduate Work stream, the applicant does not satisfy the primary criteria, in particular cl.485.223, specific to that stream.  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 must be affirmed.

13. The Tribunal also finds that the second named applicant does not meet the requirements of  cl.485.311, because she is not a member of a family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria.  There is no claim or evidence that the second named applicant meets the criteria for the grant of a Subclass 485 visa. 

    DECISION

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

    Nicola Findson
    Member