Fernando (Migration) - [2024] AATA 1535

Fernando (Migration) [2024] AATA 1535 (24 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Warnakulasuriya Pedro Niranjan Fernando
Mrs Ajani Fernando Thenage
Mr Nathan Macole Fernando
Miss Jovee Liguoria Fernando
REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)
CASE NUMBER:  2213977
HOME AFFAIRS REFERENCE(S):          BCC2020/2116466
MEMBER:P. Maishman
DATE:24 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 24 May 2024 at 3:04pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – applied under the wrong stream – must only consider a valid application – no power to grant a visa that was not applied for – Australian study requirement – Diploma level qualifications – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 46, 47, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.231, 485.311
CASES
Anand v MIAC (2013) 215 FCR 562
Berenguel v MIAC (2010) 264 ALR 417
Nguyen v MIBP [2016] FCCA 1523
Singh v MICMSMA [2020] FCA 774
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 5 September 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 19 August 2020. 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 cl 485.231, 485.232 and 485.233.
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 delegate was not satisfied the applicant holds a qualification of a kind specified by the Minister.
The applicants appeared before the Tribunal on 16 May 2024 to give evidence and present arguments.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application and documents provided to the Department by the applicant.
The applicant gave the Tribunal a copy of the delegate’s decision record with his review application. The Tribunal did not receive any further documents or written submissions.
At hearing the applicant told the Tribunal he was unrepresented when he made his application and in error chose the Post-Study Work stream. Documents on the Department’s file support his submission that than 10 days after his application he completed a Form 1023 (Notification of Incorrect Answers) identifying he had made an error and detailing he intended to apply in the Graduate Stream under the nominated occupation of Motor Mechanic (General) ANZSCO 321211.
At hearing the Tribunal was referred to the applicant’s representatives’ submissions to the Department dated 15 March 2021. The applicant’s representative also gave oral submissions. In essence it was submitted that the Tribunal should accept the application as an application in the Graduate Stream because the applicant applied for skills recognition with the Trades Recognition Australia prior to making his application, indicating his intention to apply in that stream. It was submitted the applicant substantially complied with the visa application form for his intended stream and cited the matter of Nguyen v MIBP [2016] FCCA 1523 in which the Court applied Berenguel v MIAC (2010) 264 ALR 417 and Anand v MIAC (2013) 215 FCR 562.
Section 47 of the Act provides that the Minister must consider a valid application for a visa, but not consider an application that is not valid. Section 46 of the Act prescribes that the visa application must satisfy any prescribed criteria and requirements that must be satisfied for an application for a visa of “a specified class” to be a valid application.
The matters cited by the applicant broadly give authority for flexibility in the provision of ‘evidence’ that must ‘accompany’ an otherwise valid application. In Singh v MICMSMA [2020] FCA 774 Rangiah J found the Minister’s power is to consider whether the criteria for the particular visa that was the subject of a valid application are satisfied and grant or refuse to grant that visa. The Minister has no power to grant a visa that was not applied for.
Item 1229(3)(k) of Schedule 1 of the Regulations requires that an applicant seeking to satisfy the primary criteria for the grant of a visa in Graduate Work stream must nominate a skilled occupation.
The applicant did not nominate a skilled occupation on his application form and so the application was not substantially compliant with the requirements to be a valid application in the Graduate Work stream. The Tribunal acknowledges the applicant’s attempt to correct the situation shortly after his application was made, however the application cannot be considered to be valid because it did not meet the Schedule 1 requirement when it was made.
The Tribunal cannot consider the application to be a valid application in the Graduate Work stream.
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, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.
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. The relevant instrument for this purpose is The relevant instrument for this purpose is LIN 23/023. LIN 23/023 specifies the qualifications to be:
a)bachelor degree;
b)bachelor (honours) degree;
c)masters by coursework degree;
d)masters by research degree;
e)masters (extended) degree; or
f)doctoral degree.
In this case, the applicant holds certificate and Diploma level qualifications which are not qualifications specified in that instrument. The applicant gave evidence he did not hold the specified qualifications.
Therefore the applicant does not satisfy cl 485.231(1).
On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. Therefore the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.
The secondary applications were made on the basis of the applicant’s being members of the first-named applicants family unit of the holder of a subclass 485 visa. There is no evidence before the Tribunal that any of the applicants independently meet the primary criteria. The Tribunal must affirm the decisions in the secondary applicant’s matters as they are not members of the family unit of the holder of a subclass 485 visa as required by cl 485.311.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
P. Maishman
Member