Fuensalida (Migration)

[2024] AATA 2801

Fuensalida (Migration) [2024] AATA 2801 (16 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lester Boy Fuensalida

CASE NUMBER:  2216031

HOME AFFAIRS REFERENCE(S):          BCC2022/113536

MEMBER:P. Maishman

DATE:16 July 2024

PLACE OF DECISION:  Perth

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

Statement made on 16 July 2024 at 9:41am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – specified qualification – nominated skilled occupation – courses completed within 6 months before visa application – Advanced Diploma completed – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 46-47, 65
Migration Regulations 1994, Schedule 1; Schedule 2, cls 485.231-485.233

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 14 October 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 2 February 2022. 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 the criteria in Subdivision 485.23.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231(1) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant holds a qualification of a kind specified by the Minister.

4. On 4 July 2024 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 19 July 2024. On 11 July 2024 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The applicant gave the Tribunal a copy of the delegate’s decision record with his review application. The applicant gave the Tribunal a written outline of his claims dated 2 November 2022. The Tribunal did not receive any further documents or written submissions.

8. The Tribunal has considered the applicants written submission claiming he made an error by selecting the Post-Study Stream and instead of the Graduate Stream. At the time of application he had financial pressures resulting in migration assistance being unaffordable; he spent his savings undertaking two years of Australian study; and the Covid pandemic made him worry about his family. The refusal decision being made in October 2022 prevented him from making an application in the Graduate Stream because his courses were completed more than six months earlier.

9. The Tribunal is unable to consider the application under the Graduate Work stream provisions in cl 485.22. 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.

10. 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.

11. 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.

12. 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.    

13. 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).

14. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.231(1A).

15. 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?

16. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232 or  485.233.

17. Departmental records show the applicant held a subclass 500 student visa at the time of making the subclass 485 visa application. 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.

18. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a) or cl  485.233(1)(a).

19. The applicant therefore does not meet the requirements of cl 485.232 or 485.233 and cl 485.231 applies.

    Does the applicant hold a specified qualification?

20. 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 LIN 23/023 which 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.

21. In this case, the applicant holds an Advanced Diploma of Civil and Structural Engineering which is not a qualification specified in that instrument.

22. Therefore the applicant does not satisfy cl 485.231(1).

23. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231, 485.232 or 485.233. 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.

    DECISION

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

    P. Maishman
    Member