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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Di Gangi (Migration)

Details

AGLC: Di Gangi (Migration) [2024] AATA 579
Case: [2024] AATA 579
Decision Date: 21 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, specifically the Post-Study Work stream. The applicant, Mr. Di Gangi, sought review of a decision not to grant him this visa, along with his secondary applicants. The core of the dispute revolved around whether the applicant met the specified qualification requirements for the visa stream under which he applied.

The Tribunal was required to determine whether clause 485.231 of the Migration Regulations 1994 applied to the applicant and, if so, whether he satisfied its requirements. Specifically, the Tribunal had to ascertain if the applicant held a qualification of a kind specified by the Minister for the Post-Study Work stream, which mandates qualifications at Australian Qualifications Framework level 7 or higher. The Tribunal also considered whether the applicant met the criteria for alternative Subclass 485 streams, which would have rendered clause 485.231 inapplicable.

The Tribunal found that clause 485.231 did apply as the applicant did not meet the criteria for any of the alternative streams. Crucially, the applicant held a Diploma of Hospitality, which was not a qualification specified in the relevant instrument (IMMI 13/013) for the Post-Study Work stream. The applicant acknowledged that he had mistakenly applied under the Post-Study Work stream instead of the Graduate Work stream, stating he was confused by the options. As the primary applicant did not satisfy the criteria for the visa, the secondary applicants, who relied on his eligibility, also failed to meet the requirements. Consequently, the Tribunal affirmed the decision not to grant the visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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 DronjicMemberAttachment 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.