Diksha (Migration)

[2024] AATA 270

Diksha (Migration) [2024] AATA 270 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms  Diksha

REPRESENTATIVE:  Mr Kunal Janardan Patil (MARN: 1792225)

CASE NUMBER:  2118224

HOME AFFAIRS REFERENCE(S):          BCC2021/1516471

MEMBER:Peter Katsambanis

DATE:15 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 15 February 2024 at 1:31pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work and Graduate Work Streams – specified qualification – Australian Qualifications Framework level seven or higher – application made in incorrect stream – evidence provided in error – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 417
Migration Regulations 1994, Schedule 2, cls 485.231-485.235

CASES

Singh v MICMSMA [2020] FCA 774

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 26 November 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 3 August 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 visa application submitted by the applicant to the Department clearly indicated that 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 visa because 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 qualification or qualifications of a kind specified by the Minister in an instrument in writing as required by cl 485.231(1).

4. The applicant appeared before the Tribunal on 15 February 2024 to give evidence and present arguments.

5. The applicant was represented in relation to the review by a registered migration agent. The representative did not attend the Tribunal hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

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).

9. 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. Movement record confirm that the applicant held a subclass 500 student visa when the application 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 in the applicant’s circumstances.

   Does the applicant hold a specified qualification?

   Consideration under Post-Study Work Stream

10. 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. This instrument specifies that for the Post-Study Work Stream visa that the applicant applied for, the relevant qualifications must be as follows:

    SPECIFY for the purposes of subclause 485.231(1) of the Regulations the following
    qualifications that are as a result of study undertaken at Australian Qualifications Framework 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.

11. In the applicant’s case, she has accepted in submissions to the Tribunal and at the hearing that she does not hold any such relevant qualification. She instead holds the following qualifications obtained from her studies in Australia during the period of time that she was the holder of a visa that permitted her to study in Australia:

    ·Certificate III in Commercial Cookery from Australian Education Academy Pty Ltd (studies completed from February 2019 to February 2020)

    ·Certificate IV in Commercial Cookery from The Imperial College of Australia (studies completed from February 2020 to August 2020)

    ·Diploma in Hospitality Management from The Imperial College of Australia (studies completed from September 2019 to February 2021)

12. Relevant academic transcripts and other documents were provided to the Department and to the Tribunal to verify these qualifications and relevant study dates. The documentation confirms all relevant dates and states that all studies were completed in English.

13. However, in this case, these qualifications are not at least a bachelor’s degree or higher, as specified by the Minister in IMMI 13/013. The highest-level qualification held by the applicant is a diploma level qualification being her Diploma of Hospitality Management. This was an issue accepted by the applicant and her representative in written submissions to the Tribunal and at the hearing.

14. Accordingly, in this case, the Tribunal finds that the applicant holds a diploma, which is not a qualification specified by the Minister in IMMI 13/013, and the Tribunal therefore also finds that the applicant does not hold a qualification of the type specified in that instrument.

15. Therefore, the applicant does not satisfy cl 485.231(1) for the Post-Study Work Stream of this particular visa category and therefore does not meet the requirements for the grant of a visa in the Post-Study Work Stream.

16. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231, 485.232 or 485.233 within the Post-Study Work Stream. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa in this stream, and as this is the only relevant subclass in this case, the decision under review will be affirmed in relation to the Post-Study Work Stream.

    Consideration under alternative stream – Graduate Work Stream

17. The applicant and her representative have made written submissions to the Tribunal and verbal submissions at the Tribunal hearing that the applicant inadvertently made an application within the Post-Study Work Stream of this visa category when they actually intended to apply for the Graduate Work Stream of the same visa category.

18. In an undated statement submitted to the Tribunal on 12 February 2024, the representative stated that, when lodging the visa application, it was the applicant’s actual intention to apply under the Graduate Work Stream of the subclass 485 category rather than the Post-Study Work Stream. He also stated that the applicant met the criteria to be granted a visa under the Graduate Work Stream and provided relevant documentation in support of this claim.

19. The representative further submitted that there are examples where the Tribunal, differently constituted, has remitted matters in similar circumstances. The representative provided the Tribunal with a copy of what he called a draft application form (in the name of the applicant) that was for the Graduate Work Stream. A perusal of this form indicates that it appears to be dated and timestamped by the Department’s online system on 29 July 2021. It was completed based on the applicant applying for the Graduate Work Stream visa and it nominated the skilled occupation of Chef – 351311 as the applicant’s nominated skilled occupation for the purposes of the visa application.

20. However, a perusal of the Department file indicates that this draft application form was never lodged with the Department. Instead, the visa application form lodged on 3 August 2021, which is on the Department file, was clearly for the Post-Study Work Stream. 

21. The representative submitted that the application for the wrong stream was an honest mistake made by the representative and asked that the applicant’s matter before the Tribunal be considered under the Graduate Work Stream as well as the Post-Study Work Stream. He cited several examples of past cases where the Tribunal had done this on the basis that an honest error made by a representative should not be held to disadvantage the applicant. He stated that this mistake or error was only brought to the attention of the applicant after the delegate had made a decision and after the applicant had lodged her application for review, which meant that the Department could not assess the application under the Graduate Work Stream. He also made submissions that the applicant’s qualifications and relevant studies in Australia did satisfy the requirements of cl 485.231 for the purposes of the Graduate Work Stream.

22. At the hearing, the applicant confirmed that she engaged her representative to assist her in preparing and lodging her application and that she paid this representative to assist her. She confirmed that she relied on this representative’s professional qualifications and also confirmed that it was the representative who actually lodged the initial visa application with the Department on 3 August 2021. The applicant simply provided the representative with all the details and documents asked of her, and she expected that the representative would then apply for the correct visa class, subclass and stream on her behalf.

23. The applicant stated at the hearing that when she sought an explanation for the error from her representative, he told her that the mistake had been made by an employee working in the representative’s office but had offered no further clarification or explanation to her.

24. For completeness, the same person has been the applicant’s representative from the time the visa application was lodged until the date on which the Tribunal has made its decision in this matter. There is no record on the Department file or the Tribunal file to indicate that any other person, apart from the current representative, has ever represented the applicant in this matter.

25. The policy intent, as clearly outlined in the Explanatory Statement to the amending regulations that introduced the two separate streams contained in Subclass 485, is that an applicant cannot change the stream that they have applied in once their application has been made, nor can the Tribunal consider any stream other than the one applied in.[1] This was confirmed in Singh v MICMSMA 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.[2]

    [1] The Explanatory Statement to the amending regulations that introduced the Graduate Work and Post-Study Work 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.

    [2] Singh v MICMSMA [2020] FCA 774 at [66]-[67]. The Court’s reasoning in Singh was based on the assumption that the Graduate Work stream and the Post-Study Work stream are to be regarded as being within the same class but noted that there is a real question as to whether visas in separate streams are visas within the same class or in different classes: see [59]-[60]. In the absence of argument, the Court preferred not to determine that issue.

26. However, the issue of which stream an application was made in remains a question of fact for the Tribunal based on the individual circumstances of each matter it is considering. While it will often be apparent from the face of the application which stream an applicant is applying in, conflicting material or statements accompanying an application that cast doubt on the stream that appears selected in an application form must also be considered. This is the case in the applicant’s matter.

27. If the Tribunal were to find, as a question of fact, that an application was made in a particular stream notwithstanding how the application form itself had been completed, the Tribunal would be obliged to consider the application against that stream. In doing so, the Tribunal must ensure that it is not the stream that has changed, rather it is the determination of which stream the application has actually been made in.

28. The Tribunal notes that there has been no direct judicial consideration of this issue, but two matters have been remitted by consent from the Federal Circuit Court on this basis. It should be noted that these remittals by consent were made prior to Singh v MICMSMA [2020] FCA 774, however unlike the circumstances in that matter, the applicants raised claims at the Tribunal that they had intended to apply for a stream other than the one indicated on their visa application form, had substantially complied with the visa application form and met Schedule 1 requirements for the alternative stream.

29. In the applicant’s circumstances, the Tribunal accepts that the applicant intended that she apply for the visa stream that she was qualified for, being the Graduate Work Stream, and relied on the professional competence of her representative to file the appropriate paperwork with the Department, including an expectation that the representative would file a visa application form within this Graduate Work Stream. Sadly, and with dire consequences for the applicant, in this case, this did not happen. Instead, the representative selected a different stream on the online application form, and this precipitated a series of events (as will be considered below) that severely disadvantaged the applicant.

30. In these circumstances, the Tribunal accepts that it was always the intent of the applicant to apply for the Graduate Work Stream within subclass 485. This is clearly evidenced by the draft form (as discussed above). It was through no fault of the applicant that an error was made by her representative or his employee when completing the online application form for submission to the Department, which then led to the application appearing to be for the Post-Study Work Stream. It is also accepted by the Tribunal as a matter of logic and practicality that an applicant acting reasonably would always intend to apply for a visa class, subclass or stream where they are clearly qualified to obtain a more successful outcome ahead of a visa class, subclass or stream where they are at a disadvantage and where they may not necessarily meet all of the criteria for a successful outcome. 

31. Accordingly, in the applicant’s circumstances as outlined above, the Tribunal accepts that the application was actually made in the Graduate Work Stream irrespective of the fact that the applicant’s representative selected a different stream on the online application form. The Tribunal will therefore consider the application under the Graduate Work Stream.

32. The applicant has provided documentary evidence over time that she has studied in Australia for 2 years (from February 2019 to 2021) whilst holding a student visa. During the period of these studies, she obtained the Certificate III, Certificate IV and Diploma qualifications outlined above at educational institutions that satisfy the requirements of IMMI 13/031 and cl 485.231(2). All courses were conducted in English and there is no evidence before the Tribunal that she did not meet the Australian study requirements for the purposes of cl. 485.231(3). Accordingly, the Tribunal accepts that the applicant meets the requirements of cl 485.231 for the purposes of the Graduate Work Stream within subclass 485.

33. However, as discussed with the applicant at the hearing, to be granted a visa under this stream the applicant would need to meet all of the requirements for the grant of the visa, including the requirements of Schedule 1.

34. For Graduate Work Stream applications, Item 1229(3)(k) in Schedule 1 requires that an applicant nominate a skilled occupation on their application form when the application was made. This requirement is a time of application criterion that cannot be corrected or nominated after the application has been made. No such requirement exists for the Post-Study Work Stream.

35. In the applicant’s case, there is no such nominated skilled occupation because as soon as the representative erroneously selected the wrong stream on the online application form, the online form provided questions relevant to the selected stream rather than questions relevant to the intended stream. As the Post-Study Work Stream was selected, no question about a nominated skilled occupation was asked and therefore no response was provided.

36. There is clear evidence that the intention of the applicant was always to nominate the skilled occupation of Chef – 351311. This is the nominated skilled occupation contained in the draft application form that, as discussed above, was never submitted to the Department. When the actual application was made the applicant provided evidence in the form of a receipt that she had applied to TRA for recognition of her skills as a Chef – 351311 (which is a requirement for the Graduate Work Stream and further evidence that the applicant always intended to apply for this stream). She has also subsequently provided evidence that TRA have successfully assessed her skills as suitable for the skilled occupations of Chef – 351311 and Cook – 351411.

37. However, despite the clear evidence of intent to nominate a skilled occupation, Item 1229(3)(k) in Schedule 1 requires a nominated skilled occupation when the application is made and there was no such nominated skilled occupation in the applicant’s application form submitted to the Department for the reasons outlined above, which were beyond the control and not within the genuine expectations of the applicant.

38. At the hearing, the applicant accepted that in these unfortunate circumstances beyond her control she did not meet the criteria relating to a nominated skilled occupation for the purposes of Item 1229(3)(k) in Schedule 1. There is also no other information or evidence before the Tribunal to indicate that the applicant meets the requirements of this item.

39. Accordingly, on the evidence before it, the Tribunal finds that the applicant does not satisfy the requirements of Item 1229(3)(k) in Schedule 1 and therefore the applicant does not satisfy the requirements for the Graduate Work Stream within subclass 485.

40. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa in the Graduate Work stream, and as this is the only relevant subclass in this case, the decision under review will be affirmed in relation to the Graduate Work Stream.

    CONCLUSION

41. Having considered the applicant’s claims individually and cumulatively and for the reasons outlined above, the Tribunal has affirmed the decision under review in relation to both the Post-Study Work Stream and the Graduate Work Stream of the Subclass 485 visa. As this is the only relevant subclass in this case, the Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    REQUEST FOR MINISTERIAL INTERVENTION

1. Given the applicant’s circumstances outlined above, the applicant requested at the hearing that the Tribunal refer her case to the Department for consideration by the Minister pursuant to s 417 of the Act. This provision gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

2. It is clear from the applicant’s submissions over time that in her case, she has been the inadvertent and very unfortunate victim of an error made by her representative and beyond her control. This error was the selection of the wrong visa stream within the same subclass when the representative submitted the applicant’s visa application to the Department. This error in selecting the wrong stream meant that the default settings contained in the Department’s visa online application form system did not ask a vital question relating to a nominated skilled occupation which was a time-of-application requirement for the stream the applicant intended to apply for and for which the applicant appears otherwise qualified to obtain a successful outcome. However, as the question of nominated skilled occupation was never asked, it follows that it was never answered so the applicant fails to meet this requirement even when the Tribunal (or any other decision maker) exercises a discretion, as discussed above, to consider the application under the always-intended stream rather than the stream the representative erroneously selected.

3. In such circumstances, the Tribunal cannot ascribe fault or blame to the applicant. Instead, it has great sympathy for the applicant and her predicament because the Tribunal considers that an applicant who has sought and paid for the professional services of a registered migration agent, as the applicant did in this case, would have a reasonable expectation that their representative would faithfully and professionally execute their duties as instructed by the applicant so as to present the applicant’s case in the best possible light without making an error of the kind made in this case that clearly disadvantaged the applicant and made her ineligible for the grant of a visa that she clearly would have been able to obtain if not for that error.

4. The Tribunal favourably notes the applicant’s comments at the hearing that all she wanted to do was to get a subclass 485 visa that would allow her to build up her work experience as a Chef in Australia so that she could further her career. Despite the setbacks, she has continued to work in several restaurants as a chef whilst on a bridging visa over the past 4 years and she is currently employed as a chef at a restaurant in the Chadstone Shopping Centre. The Tribunal also notes the comments made by the applicant at the hearing that she never expected that her life and her future in Australia could be ruined by a mistake or error made by a person who she had trusted and paid to assist her.

5. Accordingly, in the applicant’s circumstances and having considered the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’, the Tribunal has decided to refer the matter to the Department for consideration by the Minister pursuant to s 417 of the Act with a request that strong consideration be given to substituting a more favourable decision that would either grant the applicant a visa under the Graduate Work Stream of Subclass 485 or that would allow the applicant to make a further application for a visa within this subclass or a similar subclass whilst the applicant is still in Australia.

   DECISION

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

   Peter Katsambanis
   Member