Donato (Migration)

[2024] AATA 2340

Donato (Migration) [2024] AATA 2340 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Patrick Jon Donato

REPRESENTATIVE:  Mrs Madhu Warnakulasuriya

CASE NUMBER:  2209164

HOME AFFAIRS REFERENCE(S):          BCC2021/1461687

MEMBER:Amanda Mendes Da Costa

DATE:27 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.221 of Schedule 2 to the Regulations.

Statement made on 27 June 2024 at 10.52am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Stream – Australian study requirement – courses completed within 6 months before visa application – decision under review remitted          

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222, 485.231; rr 1.03, 1.15, 2.26

CASES

Singh v MICMSMA [2020]FCA774

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 15 June 2022 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 23 July 2021. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

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 coursework for the applicant’s qualifications (Diploma of Engineering Technology and Certificate III in Engineering) are at the minimum Australian Qualifications Framework (AQF) Level 7 or approved qualifications stipulated in the relevant legislative instrument.

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 26 June 2024 to give evidence and present arguments.

5. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

6. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.  The Tribunal also explained the role of the applicant’s representative during the hearing.  The Tribunal informed the applicant that it would seek submissions from both him and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

7. The applicant was represented in relation to the review, with his representative also participating in the hearing.

8. In making its decision the Tribunal has considered the information in both the Departmental and Tribunal files. The documentation provided by the applicant for the purpose of the review includes a statutory declaration by the applicant dated 4 June 2024. 

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. On 23 July 2021 the applicant lodged an online application for a Skilled (Provisional) (Class VC) visa. This visa has two streams, the Temporary Graduate (Graduate) stream and the Temporary Graduate (Post-Study Work) stream.

11. The applicant holds a Diploma of Engineering Technology and a Certificate III in Engineering-Fabrication Trade. When he applied for the visa, he was aware that whilst he had the qualifications necessary to satisfy the requirements for a Temporary Graduate (Graduate Stream) visa he did not have the qualifications necessary to satisfy the requirements for a Temporary Graduate (Post-Study Work) visa.

    Applicant’s evidence at the hearing

12. The applicant adopted the contents of his statutory declaration and confirmed that due to an error when he was completing the visa application form, the applicant stated that he was applying for Temporary Graduate (Post-Study Work) visa when he meant to apply for a Temporary Graduate (Graduate Stream) visa. He did not intend to apply for the former visa because he was aware at that time that he did not meet the criteria for a Temporary Graduate(Post-Study Work) visa.

13. The applicant explained that he was not represented by either a migration agent or a lawyer when he filled out his visa application form and this had contributed to his mistake.

14. Findings regarding the correct stream for the purpose of determining the applicant’s visa application

15. An applicant cannot change the stream in which they have applied for the visa once their application is made, nor can the Tribunal consider any stream other than the one in which the application is made[1]. However, the issue of which stream an application was made is a question of fact for the Tribunal.  Based on the evidence before it (including the applicant’s statutory declaration and oral evidence) the Tribunal is satisfied that that the applicant made the visa application in the Temporary Graduate (Graduate) stream but inadvertently stated that he was applying for a visa in the Temporary Graduate (Post-Study Work) stream. The Tribunal is satisfied that the applicant only became aware of this mistake after the visa application was lodged.

    [1] Singh v MICMSMA [2020]FCA774 at [66]-[67].

16. Accordingly, the Tribunal has considered whether the applicant satisfies the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl 485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221(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 485.221(b)).

17. The issue in the present case is whether the applicant meets this requirement.

    Does the applicant meet the Australian study requirement?

18. Under reg 1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

    ·that are registered courses; and

    ·that were completed in a total of at least 16 calendar months; and

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·for which all instruction was conducted in English; and

    ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

19. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 1.03, 1.15F and 2.26AC(6), and cl 485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course or courses registered under the Education Services for Overseas Students Act 2000 (Cth): LIN 19/085.

20. In his visa application the applicant declared that he had completed the following courses of study under Australian qualifications:

    ·Diploma of Engineering Technology.

    ·Certificate III in Engineering-Fabrication Trade.

21. The applicant has provided a letter of completion for the Diploma of Engineering Technology obtained from Chisholm Institute and a letter of completion for the Certificate III in Engineering, also obtained from Chisholm Institute.

22. The Confirmation of Enrolment from the Australian Government’s Department of Education and Trade in respect of the applicant’s Certificate III in Engineering shows that the course commenced on 8 July 2019 and was completed on 30 June 2020.

23. The Confirmation of Enrolment from the Australian Government’s Department of Education and Trade in respect of the applicant’s Diploma of Engineering shows that the course commenced on 13 July 2020 and was completed on 30 June 2021.

    Findings

24. Based on the evidence before it, the Tribunal finds that the applicant has satisfied that the applicant completed a trade qualification and a diploma qualification as defined in reg 2.26AC(6)).  The Tribunal is further satisfied that these qualifications were:

    ·registered courses as defined in reg 1.03;

    ·completed as defined in reg 1.15F(2) in a total of at least 16 calendar months;

    ·as a result of at least 2 academic years study;

    ·for which all instruction was conducted in English; and

    ·whilst the applicant held a visa authorising study.

25. The Tribunal is further satisfied that the applicant satisfied that the applicant met the Australian Study Requirement in the 6 months immediately before the day the application was made.

26. Therefore, the applicant meets cl 485.221.

    Conclusion

27. Based on the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

28. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.221 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member