Duvergey (Migration) - [2022] AATA 2931

Duvergey (Migration) [2022] AATA 2931 (24 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hugo Francois Duvergey
CASE NUMBER:  1925093
HOME AFFAIRS REFERENCE(S):          BCC2019/3470474
MEMBER:Katie Malyon
DATE:24 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 24 August 2022 at 12:13 pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirements – qualification at bachelor degree level or higher required – applicant completed advanced diploma – department requested additional documentation when application was certain to be unsuccessful – opportunity to apply for another subclass visa lost – unique or exceptional circumstances – exceptional cultural or economic benefit – applicant’s strong contribution to film industry and strong potential – public information and professional and personal references – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 56, 65, 351
Migration Regulations 1994 (Cth), Schedule 1, item 1229(3)(j), Schedule 2, cl 485.231(1)
CASES
Kaur v Minister for Immigration [2018] FCCA 1657
Kumar v MIBP [2017] FCCA 2406
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 20 August 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, French national Mr Hugo Francois Duvergey, applied for the visa on 11 July 2019. At the time, visa Class VC contained Subclass 485 (Temporary Graduate) visa only. 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). They include criteria in 2 different streams: the Graduate Work steam; and, the Post-Study Work stream. In this case, Mr Duvergey applied for his Subclass 485 visa in the Post-Study Work stream.
The delegate refused to grant the visa on the basis Mr Duvergey did not satisfy cl 485.231 of Schedule 2 to the Regulations because his qualification, an Advanced Diploma of Screen and Media from the Sydney Film School completed on 5 July 2019, cannot be used to satisfy the study requirements since it is not an Australian Qualifications Framework (AQF) Level 7 or higher qualification as required by cl 485.231(1) of Schedule 2 to the Regulations.
Hearing – 27 July 2022
Mr Duvergey appeared before the Tribunal at an in person hearing 27 July 2022 to give evidence and present arguments. Oral evidence provided by Mr Duvergey at the hearing is discussed below.
After the hearing, Mr Duvergey provided the Tribunal with a range of documentation to address the appropriateness of referring this matter to the Minister pursuant to s 351 of the Act. Documentation provided is discussed below.
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. However, for the reasons set out below, the Tribunal has decided to refer this matter to the Minister for pursuant to s 351 of the Act. In the opinion of the Tribunal, the circumstances prompting the Tribunal’s referral to the Minister in this case are unique or exceptional.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Duvergey is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which includes cl 485.231 of Schedule 2 to the Regulations:
485.231 Criteria for post-study work stream
(1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2) Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3) The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
The issue in the present case is whether Mr Duvergey meets cl 485.231 of Schedule 2 of the Regulations.
Legislative instrument IMMI 13/013 dated 19 March 2013 specifies that, for the purposes of cl 485.231(1) of Schedule 2 of the Regulations, the following qualifications that are the result of study undertaken at AQF Level 7 or higher:
·Bachelor Degree;
·Bachelor (Honours) Degree;
·Masters by Coursework Degree;
·Masters by Research Degree;
·Masters (Extended) Degree; and/or
·Doctoral Degree.
During the course of the hearing, the Tribunal discussed with Mr Duvergey the provisions of cl 485.231(1) of Schedule 2 of the Regulations and the qualifications specified in IMMI 13/013. As confirmed by documentation lodged with the Department, Mr Duvergey completed an Advanced Diploma of Screen and Media at the Sydney Film School on 5 July 2019. This followed his completion on 6 July 2018 of a Diploma of Screen and Media which was also undertaken at the Sydney Film School.
Mr Duvergey told the Tribunal that he lodged his application for a Subclass 485 visa on 11 July 2019, just 6 days after completing his Advanced Diploma and without the benefit of any professional advice. He added that he thought it would be a straightforward process as he holds a Master of Bioinformatics (Sciences and Technologies) from the Universite Clermont-Ferrand-II in France and worked for 10 years as an IT Developer before coming to Australia. When he received the s 56 natural justice letter from the Department on 19 July 2019 requesting that he provide an Australian Federal Police (AFP) clearance and evidence of his completion letter for his Australian qualifications he said he promptly responded and just assumed everything was on track. Mr Duvergey told the Tribunal he was really surprised to receive the delegate’s letter refusing his Subclass 485 visa application.
The Tribunal explained to Mr Duvergey that it has no discretion and that it must affirm the delegate’s decision to refuse his Subclass 485 visa in the Post-Study Work stream as he did not complete one of the degree qualifications listed above in para [9]. Mr Duvergey responded that this was the first time that he really understood the issue. The Tribunal also noted that it is not possible, in the circumstances of this case, to treat Mr Duvergey‘s application as having been made instead in the Graduate-Work stream since it is a requirement for a valid visa application that a Subclass 485 applicant must nominate one stream only (item 1229(3)(j) of Schedule 1 to the Regulations) and, if an application is made in the Graduate-Work stream, then the application must be accompanied by evidence of the applicant having applied to the relevant assessing authority for a skills assessment (emphasis added). Mr Duvergey acknowledged the Tribunal’s comments in this regard.
Having regard to available evidence, the Tribunal finds that Mr Duvergey did not, in the 6 months prior to lodgement of his Subclass 485 application, complete a Bachelor Degree, Masters Degree or a Doctoral Degree whilst studying in Australia as the holder of a Student visa: rather, he completed an Advanced Diploma. An Advanced Diploma is an AQF Level 6 qualification[1] and it is not included in the list of qualifications in the relevant legislative instrument IMMI 13/013. Accordingly, Mr Duvergey does not satisfy cl 485.231(1) of the Schedule 2 of the Regulations.
[1] aqf-2nd-edition-january-2013.pdf
On the basis of this finding, Mr Duvergey does not satisfy the criteria for the grant of a Subclass 485 visa. As such, the decision under review must be affirmed.
Is this an appropriate case to refer to the Minister?
Having found that the delegate’s decision must be affirmed because Mr Duvergey does not meet cl 485.231 of Schedule 2 of the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister.
The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant if the Minister thinks it is in the public interest to do so consistent with s 351 of the Act.
The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of the power under s 351 of the Act, nor is there any statutory power vested in the Tribunal to make a binding recommendation in this regard. The statutory power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether s/he is requested to do so by the applicant, or any other person, or in any other circumstances.
The Minister has issued Guidelines explaining the circumstances in which s/he may wish to consider exercising the public interest powers under s 351 of the Act.[2] The Guidelines state that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added). The circumstances which may be unique or exceptional in this case include, relevantly:
·exceptional economic, scientific, cultural or other benefit that would result from the person being permitted to remain in Australia;
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
[2] Ministerial intervention (homeaffairs.gov.au)
The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines is that the case should involve unique or exceptional circumstances. The Minister has also indicated where it would be inappropriate to bring a matter to his/her attention, none of which apply in this case.
During the hearing held on 27 July 2022, the Tribunal explained the process of referring a case to the Minister and the nature of documentation required to support the Tribunal’s consideration of this issue. It noted it had considered publicly available information on various websites including IMDb about Mr Duvergey[3] but observed that it had no other information to consider whether this was an appropriate case to refer to the Minister. The Tribunal notes in passing that the IMDb website claims to be the world's most popular and authoritative source for information on movies, TV shows and celebrities as well as people involved in the production and marketing of movies and TV shows.
[3] Hugo Duvergey - DATA WRANGLER in Deep Pockets Empty Hearts (dpehfilm.com); Hugo Duvergey - IMDb
Summary information regarding Mr Duvergey on the dpehfilm.com website for the short film
project Deep Pockets, Empty Hearts states the following:
Hugo Duvergey - DATA WRANGLER
Hugo was born and raised in France. After working for 10 years as an IT developer, he decided for a career change and moved to Australia in 2017, where he attended Sydney Film School (for) two years. In 2019, he completed an Advanced Diploma of Screen and Media majoring in producing.
He wrote and directed five short films: the slice-of-life semi-autobiography State of Vertigo (2018), the comedy The Great Maple (2018), the dystopian drama The Other Side (2019), the mystery Whencome Home (2020) and the thriller Inspiration (in post-production).
The Other Side won the Best Performance and Best Screenplay Awards at the 30th Sydney Film School Festival (mid-2019). In 2020, it was officially selected for the 16th International Horror 82 Sci-fi Film Festival (Phoenix, Arizona) and the 10th Pune Short Film Festival (India).
Since his early days at Sydney Film School, Hugo has been involved in many projects. His producing credits include the documentary The Finish Line (2018) and the fictions Une Pensée pour Toi (2018), Pendulum (2019) and Detached (2019). He also got multiple experiences as first assistant director, production manager, assistant camera, sound recordist and editor.
In 2019, he got his first experience on a feature film, working for four weeks as a data wrangler on the set of Moon Rock for Monday (directed by Kurt Martin).
The film Deep Pockets Empty Hearts, due to be released in 2022, was directed and filmed by a Sydney based team in which Mr Duvergey worked both as a Data Wrangler and Lighting Technician.[4]
[4] The Team of Deep Pockets Empty Hearts; Deep Pockets, Empty Hearts-IMDb
Mr Duvergey acknowledged the Tribunal’s summary of information on the dpehfilm.com website. He requested, and the Tribunal afforded him, a further 2 weeks to provide documentation to the Tribunal for its consideration about referring his matter to the Minister. On 11 August 2022, Mr Duvergey provided the Tribunal with a range of documents for consideration whether this is an appropriate case to refer to the Minister.
Documentation provided included various reference letters from both professional and personal contacts, which are summarised below:
1)Festival Director of the Sydney Science Fiction Film Festival 2022, Mr Simon Foster.[5]
[5] Sydney Science Fiction Film Festival; Simon Foster: The Captain of the Scifi Film Festival | Celluloid and Whiskey
In his signed statement dated 28 July 2022, Mr Foster provides both personal praise for Mr Duvergey’s short film The Other Side and acknowledges praise from the organisers of the Berlin Sci-Fi Film festival, which selected his film to present at their inaugural Australian Film Showcase in February 2021.
Mr Foster also states that, because of Mr Duvergey’s credentials and talent, he has invited him to serve on the 2022 Jury at the Sydney Film Festival to assess 51 Films internationally and decide winners for the Best Film, Best Actor and Best Actress categories.
2)Rasmus Callmer, Lecturer at Sydney Film School, Camera Technician and Cinematographer [6] has provided a signed statement dated 28 July 2022.
[6] Rasmus Callmer - IMDb
Mr Callmer was Mr Duvergey’s former teacher and colleague at the Sydney Film School. He highly commends Mr Duvergey’s thesis film The Other Side which was well received at multiple international festivals. Mr Callmer is confident that he will continue to engage Mr Duvergey in commercial film making and, further, that Mr Duvergey will continue to tell great stories at the intersection of his French background and his second home here in Australia.
3)Michael McLennan, Lecturer at Sydney Film School,[7] has provided a signed letter dated 1 August 2022.
[7] Michael McLennan - Writer / Director / Producer / Editor - THE WAY YOU MOVE - Wavelength Films (Australian company) | LinkedIn
Mr McLennan comments on Mr Duvergey’s teamwork and his diligence during his studies at the Sydney Film School. Additionally, Mr McLennan acknowledges that he employed Mr Duvergey as a Data Wrangler through his production company ‘Wavelength Films’. He also praises Mr Duvergey for his success internationally for his short film The Other Side which he notes was selected for multiple international film festivals in 2020 and 2021.
By way of concluding comment, Mr McLennan notes that Mr Duvergey can bring significant benefits to the Australian film industry.
4)Tanuj J. Narula, Producer and Production Supervisor at Sydney Film School [8] has provided a signed letter a letter dated 1 August 2022.
Mr Narula acknowledges supervising Mr Duvergey whilst he was studying at Sydney Film School. He describes Mr Duvergey’s commitment and ability to work in a team whilst completing his studies. His letter acknowledges that Mr Duvergey has written and directed 3 short films, one of which - The Other Side - was selected for international film festivals.
In conclusion, Mr Narula states that it is very clear Mr Duvergey possesses human and professional qualities which can substantially benefit the Australian film industry.
5)Kurt Martin, Australian Writer and Director[9] has provided a signed letter dated 29 July 2022.
Mr Martin states that he met Mr Duvergey when he joined the crew as a Data Wrangler for Mr Martin’s debut film Moon Rock for Monday in 2019. He acknowledges the efforts of Mr Duvergey as well as the rest of the cast and crew in the film’s success as it received multiple selection, nominations and awards, both in Australia and internationally. Mr Martin has regard to Mr Duvergey’s skill set, his deep connections to Australia and believes that he will benefit the Australian film industry.
6)Jim Robison is CEO of Lunar Pictures.[10] Mr Robison produced the film Moon Rock for Monday which received 8 awards and 25 nominations (including a nomination for the AACTA Award for Best Indie Film in 2021) and which has now been picked up by multiple streaming services such as Foxtel and Binge.
Mr Robison explains Mr Duvergey’s role as Data Wrangler. He said he noticed really early how professional Mr Duvergey was as the role of the Data Wrangler is a crucial task requiring attention to detail: it is a huge task as a lot of data is constantly produced through each day. Mr Robinson regards Mr Duvergey as an emerging talent in the Australian film industry.
7)Australian residents Mrs Tricia Canny and Mr Michael Canny have provided a personal reference letter commenting on their friendship with Mr Duvergey spanning over 10 years.
8)Dr Armaud Ahier, Senior Postdoctoral Research Fellow at the Queensland Brain Institute provides another personal reference. Dr Ahier was in the same research group as Mr Duvergey while studying in France at the Universite Clermont-Ferrand-II and they have maintained a close friendship since that time. Dr Ahier provides a positive character reference of Mr Duvergey and acknowledges their regular visits and holidays together in Sydney, Brisbane and on the Sunshine Coast.
[8] T.J. Narula - Production Specialist - Academy of Film, Theatre and Television | LinkedIn
[9] Kurt Martin - IMDb
[10] TEAM — Lunar Pictures
Mr Duvergey has also provided the Tribunal an update Australian Federal Police Certificate and a submission dated 11 August 2022.
The Tribunal has carefully considered the documentation provided by Mr Duvergey after the hearing.
In considering whether exceptional economic, cultural or other benefit would result from Mr Duvergey being permitted to remain in Australia, the Tribunal accepts the evidence provided by the pre-eminent persons in the Australian film industry referred to above at para [24] collectively confirm that Mr Duvergey has strongly contributed to the Australian film industry to date and has evident strong potential to continue to do so should he be permitted to remain in Australia. The Tribunal acknowledges that Mr Duvergey’s skills, qualifications and experience as a Film Director, Film Editor and Data Wrangler from a different culture would contribute to a more diverse talent pool in Australia. This is particularly so having regard to Mr Duvergey’s background as an IT Developer which would be, no doubt, somewhat rare in the Australian film industry.
Based on the professional referee letters and statements provided, it is evident to the Tribunal that there would be exceptional cultural or other benefit that would result from Mr Duvergey being permitted to remain in Australia;
The Tribunal has also considered whether application of the relevant legislation in this case leads to an unfair result. It acknowledges that, as required by the relevant legislative instrument IMMI 19/051, applicants in the Graduate Work stream must apply for a skills assessment from a specified assessing authority and accompany their visa application with evidence of having applied for a skills assessment in an occupation included on the Medium and Long-Term Strategic Skills List (MaLT SSL). However, IMMI 19/051 does not include in the MaLT SSL a range of occupations relevant to the film and media industry such as:
·    Director (Film, Television, Radio, Stage) ANZSCO 212312;
·    Film and Video Editor ANZSCO 212314;
·    Program Director (Television or Radio) ANZSCO 212315; and,
·    Video Producer ANZSCO 212318.
Rather, all of these occupations are included in the Short-term Skilled Occupation List (St SOL). The occupations listed in the St SOL in IMMI 19/051 are relevant to other visa subclasses including Subclass 190 (Skilled – Nominated) visa and Subclass 489 (Skilled – Regional (Provisional)) visa.

The Tribunal considers that it appears unfair in the circumstances of this case that a delegate should contact Mr Duvergey pursuant to s 56 of the Act and request that he provide an AFP Certificate as well as a completion letter of his Australian qualifications when it was evident that the qualifications as set out in this Subclass 485 visa application would not meet the requirements in cl 485.231(1) of the Regulations.
At the time the delegate emailed the s 56 natural justice letter on 19 July 2019, Mr Duvergey’s Subclass 500 Student visa was valid until 12 August 2019 (that is, another 3 weeks). In the circumstances, rather than request additional documentation for a Subclass 485 visa in the Post-Study Work stream visa which, for reasons outlined above was certain to be unsuccessful, it may have been more appropriate for the delegate to contact Mr Duvergey and bring to his attention the possibility that, whilst he holds a substantive visa, he may be able to apply for another visa such as a Subclass 407 Training visa or a Subclass 482 visa nominated by a prospective employer. It appears unfair to the Tribunal that a delegate should expressly request Mr Duvergey provide further documentation in support of his Subclass 485 Post-Study Work stream visa when it was clear that such an application was bound to fail.
In passing, the Tribunal acknowledges that many of the questions on the Department’s Application for Temporary Graduate Skilled Regional Visa on-line form provide applicants with a drop-down menu. The Tribunal also acknowledges the part of the Post-Study Work application form requiring insertion of an applicant’s qualifications is not a drop-down menu which requires an applicant to simply click details of their relevant degree. Had this been the case, Mr Duvergey would have been precluded from providing details regarding his Diploma of Screen and Media as well as his Advanced Diploma of Screen and Media. Instead, he had to manually type the details of his qualifications in the on-line form.
In this regard, the Tribunal notes that the Federal Circuit Court of Australia has commented on the absence of any warning to applicants about the consequences when responding 'No' to questions in the online Subclass 485 visa application form: Kumar & Anor v Minister for Immigration & Border Protection & Anor [2017] FCCA 2406, Driver J at [14] (Kumar’s case). Kumar’s case involved an applicant's negative response to the question regarding whether he had undertaken a prescribed English language test within 3 years of lodgement of the application, one of the common criteria for both streams of the Subclass 485 visa. His Honour observes that the applicant makes the 'reasonable point' that 'it would be kinder to applicants and perhaps more efficient if the online form prevented applicants proceeding further once they answered the question in the negative'. Driver J’s comments in Kumar’s case have been recognised by Neville J in Kaur v Minister for Immigration & Anor [2018] FCCA 1657.
The Tribunal opines that, if the on-line form had a drop-down menu which only included only degrees such that Mr Duvergey would have been prevented from proceeding further with his Subclass 485 Post-Study Work stream application once he could not locate reference to an Advanced Diploma, he may well have sought professional advice and/or reviewed the Department's website for more information about his visa options. This is especially so in light of the fact that the occupations referred to above at para [29] are not included in the list of occupations for the Subclass 485 Graduate Work stream as they are not included in the MaLT SSL in IMMI 19/051. The Tribunal accepts that this is speculative: however, it may well have resulted in Mr Duvergey not proceeding with his Subclass 485 Post-Study Work stream application and, instead, prompted him to explore other visa options which would have allowed him to remain in Australia and pursue his professional career in the Australian film industry following his studies at the Sydney Film School.
Having considered Mr Duvergey’s oral evidence at the hearing referred to above at para [11] and the delegate’s express request for further evidence in support of the visa application in circumstances where not only should it have been evident to the delegate that the visa application was bound to fail but also the applicant was still then the holder of a substantive visa, the Tribunal is of the view that the application of the relevant legislation leads to an unfair result in this case.
In light of the Tribunal’s cumulative considerations outlined above, the Tribunal will refer this case to the Minister pursuant to s 351 of the Act. It will forward to the Department letters of support provided to the Tribunal by Mr Duvergey and referred to above at para [24] to demonstrate that this case meets the unique or exceptional circumstances in the Minister’s Guidelines. Further documentation may be provided by Mr Duvergey direct to the Department in support of his application to the Minister for intervention in his case, including letters from other eminent persons in the Australian film industry.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Katie Malyon

Member