Efionayi (Migration)

[2019] AATA 5301

Efionayi (Migration) [2019] AATA 5301 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Jennifer Efionayi
Master Wilson Ogheneruno Agbomiyeri

CASE NUMBER:  1909022

HOME AFFAIRS REFERENCE(S):           BCC2019/357996

MEMBER:Bridget Cullen

DATE:16 August 2019

PLACE OF DECISION:  Brisbane

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

·cl.485.231(1) of Schedule 2 to the Regulations.

Statement made on 16 August 2019 at 2:17pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – nominated skilled occupation – assessment of skills – applied for wrong stream – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.223, 485.231(1), rr 1.03, 1.15

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 11 April 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 February 2019. 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 (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 visas because the first named applicant (the applicant) did not satisfy cl.485.223 of Schedule 2 to the Regulations because when her application was made, it was not accompanied by evidence that she had applied for an assessment of her skills for the nominated skilled occupation by a relevant assessing authority.

4. The applicant applied for review of the primary decision on 12 April 2019 and provided a copy of the delegate’s decision record to the Tribunal.

5. The applicant appeared before the Tribunal on 16 August 2019 to give evidence and present arguments. The applicant was represented in relation to the review by a registered migration agent. The representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant's skills in relation to their nominated skilled occupation.

   Had the applicant applied for a relevant skills assessment?

8. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated 'skilled occupation' by a 'relevant assessing authority'.

9. ‘Skilled occupation' has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. 'Relevant assessing authority' means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). The relevant instrument is Legislative Instrument IMMI 16/60.

10. On the evidence before the Tribunal, the applicant nominated the occupation of ‘Registered Nurse (Aged Care)' which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Nursing & Midwifery Accreditation Council Limited.

11. On the application form, the applicant responded 'No' to the question 'Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?'.

12. The applicant explained, in her written submissions, as well as in her evidence before the Tribunal, that she mistakenly applied for the wrong stream of visa, through inadvertent error.  She intended to apply under the Post Study Stream, and provided a submission from her representative who relevantly stated:

    She had been scammed a money of $4,000 from her bank account which she had saved for her SC485 visa application and Migration Agent’s fees. It was reported to police on 12 December 2018. It happened to her just after finishing her study. She has submitted a letter from NSW police force as an evidence.

13. The Tribunal accepts the evidence of the applicant about this unfortunate episode, which was corroborated by supporting evidence from the New South Wales police force.  It was apparent to the Tribunal at the hearing that this episode has caused the applicant significant distress.  The applicant was, at the time she made her visa application, acting without the assistance of a registered migration agent, as she could not afford the assistance, having had her funds stolen. 

14. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.

    Did the applicant intend to apply under the Post-Study Work Stream?

15. The applicant's representative's written submission is that, through human error, she made a mistake in applying for the wrong stream of visa. The applicant stated that she had intended to apply under the Post Study Stream.

16. The visa application form clearly states:

    To be eligible to be granted a subclass 485 visa through the Graduate Work Stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

17. As noted above, the applicant clearly answered 'No' to the question 'Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?', which, given the applicant’s evidence about her intentions and inadvertent error, persuades the Tribunal that the applicant did not intend to apply for a 485 visa under the Graduate Work Stream but rather always intended to apply under the Post-Study Work Stream which has no such requirement for -a skills assessment.

18. The Tribunal is of the view that it is able to assess this application under the Post-Study Work Stream rather than the selected Graduate Work Stream in line with a consent remittal of the Federal Circuit Court in BRG368/2017.

19. After reviewing the Schedule 1 criteria and being satisfied that the applicant held a Student Temporary (Class TU) visa that was granted on the basis of an application made on or after 5 November 2011 and that it was the first Student Temporary (Class TU) visa the applicant held, the Tribunal is satisfied that the applicant substantially complied with visa application form for the Post-Study Work Stream.

20. The Post-Study Work Stream requires that the applicant holds a qualification of a kind specified by the Minister in an instrument in writing for this subclause: cl.485.231(1).

21. The relevant instrument is IMMI 13/013. This instrument relevantly specifies, for the purpose of subclause 485.231(1), the following qualifications that are a result of study undertaken at Australian Qualifications Framework level seven or higher:

    Bachelor Degree;

    Bachelor (Honours) Degree;

    Masters by Coursework Degree;

    Masters by Research Degree;

    Masters (Extended) Degree and/or;

    Doctoral Degree

22. The evidence before the Tribunal is that the applicant successfully completed a Bachelor of Nursing at Griffith University on 15 November 2018.

23. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.231(1) of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.231(1) of Schedule 2 to the Regulations.

    Bridget Cullen
    Member