Islam (Migration)

[2022] AATA 2004

Islam (Migration) [2022] AATA 2004 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zahirul Islam

CASE NUMBER:  2114041

HOME AFFAIRS REFERENCE(S):          BCC2020/1176848

MEMBER:Michelle East

DATE:6 May 2022

PLACE OF DECISION:  Perth

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 485.231 of Schedule 2 to the Regulations

Statement made on 06 May 2022 at 11:49am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application – qualification is a registered course – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 485.221, 485.223, 485.231

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 28 September 2021 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 15 March 2020. Visa Class VC contains Subclass 485. 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 now seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations because the applicant did not apply for the required skills assessment with the appropriate authority prior to the lodgement of his visa application for a Graduate Work stream visa.

4. The applicant appeared before the Tribunal on 5 May 2022 to give evidence and present arguments.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 was seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cls 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. The issue in the present case is whether the applicant meets those requirements.

8. The applicant could have applied for a visa in the Post Study Work stream which would not have required the skills assessment prior to the date of the visa application.

9. The issues to be determined by the Tribunal are:

   -Can the applicant’s visa application be assessed against the criteria for the Post Study Work stream, and if so;

   -Are the criteria for the Post Study Work stream met?

   Can the applicant’s visa application be assessed against the criteria for the Post Study work stream?

10. To make a valid visa application for a Subclass 485 visa item 1229(3)(j) in Schedule 1 requires an applicant to nominate only one stream to which the application relates.  Once the applicant nominates a stream, item 1229(3)(k) requires an applicant to nominate a skilled occupation (if seeking to satisfy the primary criteria in the Graduate Work stream) and item 1229(3)(l) requires an applicant to have held a student visa at a particular time (if seeking to satisfy the primary criteria in the Post-Study work stream).

11. The Tribunal has reviewed the Departmental file and finds the other Schedule 1 requirements have been met.

12. The Tribunal notes that the terms of Schedules 1 and 2 do not expressly prohibit an applicant from being considered against the criteria in either stream or from changing streams after the initial application.

13. The applicant had studied a Bachelor of Business (Accounting) at La Trobe University.

14. At the hearing the applicant explained that he genuinely did not understand that he had applied for the wrong stream when applying for his visa.  He said he made an honest mistake in not applying for the Post Study work stream and it was during the onset of the COVID-19 pandemic and he had no money for a lawyer.  He said if he had known he would have applied for the Post Study work stream.

15. The Tribunal notes the authority of Prajapati [2021] AATA 2543 in which relevant Federal Circuit Court and Tribunal decisions were considered with the Tribunal concluding that some of those authorities referred to do support the contention that a visa application can be assessed against a different stream if there is substantial compliance with the visa application form.

16. The Tribunal therefore considers it is open to it to consider an applicant who has selected the Graduate Work stream against the Post-Study Work stream if it is satisfied on the evidence that the application made was in fact an application for a Subclass 485 visa in the Post-Study Work stream.  This is a finding of fact to be made by the Tribunal.

17. Having carefully considered the submissions of the applicant together with his oral evidence at the hearing, the Tribunal is satisfied that the applicant did not understand that he was applying for the visa in the incorrect stream.  This is not an uncommon submission and the Tribunal has significant sympathy for visa applicants in this situation.  The process and the wording can be confusing.

18. The Tribunal therefore finds it is able to assess the application against the requirements of cl.485.231.

    Are the criteria for the Post Study Work stream met?

19. 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?

20. Subclause 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 IMMI 13/013.  In this case, the applicant holds a Bachelor Degree which is a qualification specified in that instrument.

21. Accordingly, cl 485.231(1) is met.

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

22. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031.

23. In this case, the applicant’s qualification was conferred or awarded by the La Trobe University which is an educational institution specified in that instrument.

24. Accordingly, cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

25. Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

26. 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,

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

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

    ·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.

27. ‘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 registered under the Education Services for Overseas Students Act 2000: LIN 19/085.

28. Information provided by the applicant to the Tribunal demonstrates he undertook a Bachelor or Business (Accounting) which constitutes a ‘degree’ as defined in r.2.26AC(6).

29. The Tribunal is satisfied that the Bachelor Degree is a registered course, being a course of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students.  The Tribunal therefore finds that r.1.15F(1)(a) is met.

30. Paragraph 1.15F(1)(b) requires that the course or courses relied upon to satisfy the Australian study requirement were completed in a total of at least 16 calendar months.  The applicant’s degree was full-time for 3 calendar years.  The course was therefore completed in a total of at least 16 calendar months.  The Tribunal is therefore satisfied that r.1.15F(1)(b) is met.

31. Evidence provided indicates that the duration of the course was 156 weeks and therefore at least 92 weeks and 2 academic years study and that all courses were completed in English.  The Tribunal is satisfied that the applicant meets the requirements of rr.1.15F(1)(c) and 1.15F(1)(d).

32. Based on the Department’s records, the applicant was the holder of a student visa until after the completion of his studies and therefore was the holder of a visa authorising him to study whilst undertaking the relevant qualifications.  The Tribunal therefore finds that r. 1.15F(1)(e) is met.

33. As paragraphs (a) to (e) of r.1.15F(1) have been met, the Tribunal is satisfied that the applicant has satisfied the Australian study requirement.

34. To satisfy cl.485.231(3) the applicant must show that he satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made, that is 15 March 2020.

35. Based on the evidence before it, the Tribunal is satisfied that the applicant completed his studies within the period of six months ending immediately before the day of the visa application.

36. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

37. Accordingly, cl.485.231(3) is met.

38. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231.  The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

39. 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 485.231 of Schedule 2 to the Regulations.

    Michelle East
    Member