Di Gangi (Migration) - [2024] AATA 579

Di Gangi (Migration) [2024] AATA 579 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Michele Di Gangi
Mrs Hui-ting Tsai
Mr Andrea Di Gangi
CASE NUMBER:  2200516
HOME AFFAIRS REFERENCE(S):          BCC2021/412830
MEMBER:Antonio Dronjic
DATE:21 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 21 March 2024 at 2:21pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – specified qualification – IMMI13/013 – Diploma of Hospitality – Australian Qualifications Framework level 7 or higher – applied under the wrong stream – Tribunal confined to considering the application as made – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435
Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120
Singh v MICMSMA [2020] FCA 774
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 January 2022 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 17 March 2021. 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.
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 applicant did not hold the qualification specified in the relevant instrument. (IMMI13/013)
The Tribunal received a review application from the applicants on 13 January 2022. It was accompanied by a copy of the delegate’s decision. With the review applications, the applicants submitted supporting documentary evidence. The list of documents submitted with the applications is attached to this decision record and marked as Attachment A.
On 27 February 2022, the Tribunal received documentary evidence from the applicant. The list of documents submitted is attached to this decision record as Attachment B.
On 18 October 2023, the Tribunal received documentary evidence from the applicant. The list of documents submitted is attached to this decision record as Attachment C.
On 5 November 2023, the Tribunal received documentary evidence from the applicant. The list of documents submitted is attached to this decision record as Attachment D.
On 30 January 2024, the Tribunal wrote to the applicants advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicants to appear before the Tribunal at a hearing on 21 March 2024.
On 11 March 2024, the Tribunal received documentary evidence from the applicant. The list of documents submitted is attached to this decision record as Attachment E.
On 21 March 2024, the applicants submitted a letter from Dr Lak confirming that the second named applicant is pregnant and is feeling anxious and under stress.
The applicants appeared before the Tribunal on 21 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 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.
Does cl 485.231 apply to the applicant?
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?
Clause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. IMMI 13/013 specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework level 7 or higher:
Bachelor Degree;
Bachelor ( Honours) Degree;
Masters by Coursework Degree;
Masters by Research Degree;
Masters (Extended) Degree and/or;
Doctoral Degree.
It is not disputed that the applicant does not hold any of the above AQF qualifications. In this case, the applicant holds a Diploma of Hospitality which is not a qualification specified in the relevant instrument.
In his evidence the applicant stated that he mistakenly applied for a Subclass 485 visa under “Post Study Work Steam” instead of “Graduate Work Stream”. He stated that he was not assisted by migration agent at the time of visa application.
In his statement of 12 January 2022, the applicant inter alia, stated:
It wasn’t on my intention to apply for the wrong visa. In my application form, however, I selected the incorrect stream. I confused between the ‘post-study work’ and ‘graduate work’ streams, by selecting the incorrect stream. I should have applied for ‘graduate work’ instead of ‘post-study work’.
In his written statement of 11 March 2024, the applicant stated that he genuinely intended to apply for this visa under “Graduate Work Stream” but mistakenly selected the wrong “Post Study Work Steam”.
Accordingly, the starting point for the Tribunal in relation to a review of a Subclass 485 visa refusal is to make a factual finding about which application has been made, that is did the applicant apply for a Subclass 485 visa in the Graduate Work Stream or did he apply for a Subclass 485 visa in the Post-Study Work Stream. Claims with respect to an applicant’s intention may be relevant to this factual finding, although not necessarily determinative of it.[1]
[1]Singh v MICMSMA [2020] FCA 774.
The Tribunal noted that in the visa application form, the applicant selected the Post Study Work Stream. In his evidence, the applicant confirmed that, upon lodging the application for a Subclass 485 visa, he received and read the visa application acknowledgment letter and bridging visa A grant letter from the Department. The Tribunal observed that that it is clearly stated on the Department’s acknowledgment and bridging visa A grant letter that he applied for a Subclass 485 visa under “Post Study Work Steam” and enquired if the applicant contacted the Department at that time to inform it that he accidently applied under the wrong stream.
Mr Di Gangi stated that he was convinced that he had applied for the right visa and under the wright stream until the time he received the refusal letter from the Department.
The Tribunal noted that, in the visa application form, the applicant did not nominate his occupation and that, without nominating his occupation in the visa application form, he would not be able to meet the schedule one requirements for Graduate Work Stream.
The Tribunal explained to the applicants that, an application under “Graduate Work Stream” would have been considered invalid without nominating the skilled occupation in the application form. This is because an applicant would not be able to meet the requirements of sch.1 item 1229(3)(k).
The applicant stated that he intended to apply for a Subclass 190 visa but was unable to secure the invitation from the Victorian Government. He further stated that his current employer may be willing to nominate him for a Subclass 186 visa in the ‘direct entry stream’.
For the reasons stated above, the Tribunal is satisfied that the applicant, when the application was lodged with the Department, applied for a Subclass 485 visa under the Post-Study Work stream and not under the Graduate Work stream.
The Tribunal acknowledges that the wording of the two streams is confusing, especially when language difficulties are factored in. However, not understanding legal requirements is not the same as making an unintentional selection error on the application form.
Is it possible to change the nominated Post-Study Work stream to the Graduate Work stream?
Pursuant to item 1229(3)(j) of Schedule 1 to the Regulations, an applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa must nominate only one stream to which the application relates.
In considering this issue, the Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3): 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.
As regards the application of these policy guidelines, 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 Vishnumolakala 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.
On the plain reading of item 1229(3)(j) and the policy intention stated in the relevant parts of PAM3, the Tribunal is not satisfied that an applicant for a Subclass 485 visa is able to change the stream they have selected after their application has been made.
This was confirmed in Singh v MICMSMA [2020] FCA 774 which held that the Minister (or the Tribunal on review) had no power to grant the applicant a Subclass 485 visa in the Post-Study Work Stream in circumstances where the application made was in the Graduate Work Stream.
It follows that an applicant cannot change the stream they have applied in once their application has been made and the Tribunal cannot consider any stream other than the one applied in.[2]
Does the Tribunal have power to consider whether the applicant satisfies criteria for the visa grant in the Graduate Work stream?
[2] The Explanatory Statement to the amending regulations that introduced the two streams in Subclass 485 said the intention was to ensure that applicants are only assessed against the criteria specific to the stream that was selected: Explanatory Statement to SLI 2013, No 33 at p.8.
In Singh’s case, Rangiah J concluded at [68] that:
The Tribunal only has authority to review the decision made by the Minister, and it has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister.
His Honour referred to the statement made by Finkelstein J in Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 and subsequently endorsed by Merkel J in Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435:
The Tribunal is in no better position than the Minister as regards a decision under review. It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision. In addition, for the purposes of its review, the tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision. But the tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker.
His Honour concluded at [69] that:
The Minister could not have granted a visa in the Post-Study Work stream as no application had been made for such a visa.
In the Tribunal’s view, the same rational applies if the application was made in the Post-Study Work Stream. The Minister (or Tribunal on review) would not have power to grant the visa in the Graduate Work Stream. Relying on the above cited Federal Court judgment, the Tribunal finds that it does not have power to consider whether the applicant satisfies criteria for the visa grant in the Graduate Work Stream.
The Tribunal is mindful of the reasons for consent remittal endorsed by the Court in BRG368/2017 and SYG3039/2016. In each matter it was 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). However, both matters were remitted by consent prior to the decision in Singh’s case which the Tribunal is bound to follow.
Based on the evidence before it, the Tribunal finds that the applicant does not hold a qualification or qualifications of a kind specified by the Minister in the relevant Instrument and therefore does not satisfy cl 485.231(1).
As the Tribunal has found that the applicant does not meet cl.485.231(1), it is unnecessary to consider whether he meets the Australian study requirement in r.1.15F and cl.485.231(3) as he is required to meet each of the subclauses in cl.485.231, and failure to meet one means that he cannot meet the clause as a whole.
Based on the above findings, the Tribunal finds that the applicant does not meet cl 485.231, 485.232 or 485.233. 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.
To meet cl 485.311, the secondary applicants must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 485 visa. As the first named applicant does not satisfy the primary criteria for a Subclass 485 visa, the Tribunal finds that the second and the third named applicant do not satisfy cl 485.311. There is no evidence before the Tribunal that the second or third named applicant meet the primary criteria in their own right.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Antonio Dronjic
Member

Attachment A: Document List
·Michele Di Gangi TRA skills assessment dated 5 May 2021.
·IELTS test report (unreadable).
·Applicant statement dated 12 January 2022.
·CoEs for Certificate IV in Commercial Cookery and Diploma of Hospitality Management dated 10 May 2018.
·Course completion letter from Melbourne City Institute of Education dated 15 March 2021.
Attachment B: Document List
·Michele Di Gangi and Andrea Di Gangi passports.
·Birth certificate for Andrea Di Gangi dated 13 January 2022.
·Marriage certificate for Michele Di Gangi and Hui Ting Tsai dated 17 February 2022.
Attachment C: Document List
·Pearson PTE Academic score report for Michele Di Gangi dated 17 March 2023.
Attachment D: Document List
·Letter of employment from West Hawthorne Early Childhood Centre dated 19 September 2023.
·Registration of interest for Victorian Nominations (subclasses 190 and 491) visa dated 21 March 2023.
·DoHA expression of interest submitted 20 September 2023.
·Fulltime employment contract between Little Lane Early Learning Hawthorne Pty Ltd and Hui-Ting Tsai undated.
·Residential tenancy agreement for 3/76 Westbury Street St Kilda East dated 21 December 2021.
·Statement from the applicant dated 5 November 2023.
Attachment E: Document List
·Statement from the applicant dated 11 March 2024.
·Certificates from Melbourne City Institute of Education for Certificate III and IV in Commercial Cookery and Diploma of Hospitality Management.
·Letter of offer from Melbourne City Institute of Education dated 9 May 2018.
·DoHA subclass 500 visa grant dated 31 October 2018.
·Translated Italian police check dated 15 March 2021.
·Australian Federal Police national police check receipt dated 24 February 2021.
·Hui-Ting Tsai passport issued 7 July 2023.
·Letter of employment from West Hawthorne Early Childhood Centre dated 29 February 2024.
·Confirmation of employment from Cosi Bar Ristorante dated 1 March 2024.
·Letter of support from Fabio Esposito of Cucina Di Gio dated 4 March 2024.
·Letter from MP Dr Dominique Ryan Member for Kooyong dated 8 March 2024.