Magammulla (Migration) - [2019] AATA 4609

Magammulla (Migration) [2019] AATA 4609 (8 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sampada Magammulla
Mr Omila Kumarasinghe
CASE NUMBER:  1913026
HOME AFFAIRS REFERENCE(S):           BCC2019/1118868
MEMBER:Tim Connellan
DATE:8 October 2019
PLACE OF DECISION:  Melbourne
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 criterion for a Subclass 485 visa:
·cl.485.231 of Schedule 2 to the Regulations

Statement made on 08 October 2019 at 10:32am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work Stream – no skills assessment – applied for the wrong stream – Post-Study Work stream – specified qualification – specified educational institution – Australian study requirement – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.223, 485.231
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 3 May 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 March 2019. 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 (the Regulations), including criteria in different streams. In this case, the applicant lodged an application for a visa in the Graduate Work Stream.
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 in her application in response to the question Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation? The applicant declared No.
The applicant appealed the decision to be reviewed by the Tribunal.
The primary applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the hearing the applicant’s migration agent provided a submission in which he stated the applicant had lodged her application without any migration assistance and at the time, did not believe she needed a Skills Assessment because she thought she was applying under the Post-Study Work Stream.
She only realised she had applied for the wrong stream after receiving the refusal notification on 3 May 2019.
The applicant confirmed that in her application she had incorrectly indicated that she met the Graduate Work Stream requirements but had intended to meet the Post Study Work Stream requirements.
From the evidence presented the Tribunal is satisfied that the applicant has lodged a valid visa application in satisfaction of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Magammulla (Migration) [2019] AATA 4609
Case: [2019] AATA 4609
Decision Date: 8 October 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Sampada Magammulla and Mr Omila Kumarasinghe against a decision to refuse their applications for Skilled (Provisional) (Class VC) visas, specifically the Subclass 485 (Temporary Graduate) visa under the Graduate Work Stream. The appeal was heard by the Tribunal, presided over by Member Tim Connellan.

The primary legal issue before the Tribunal was whether the applicant, Mrs Magammulla, met the criteria for the Subclass 485 visa, particularly in light of her having initially applied under the Graduate Work Stream but subsequently seeking to satisfy the requirements of the Post-Study Work Stream. This involved determining whether she held a specified qualification from a specified educational institution and had satisfied the Australian study requirement within the relevant timeframe.

The Tribunal reasoned that the applicant had lodged a valid visa application and had mistakenly applied for the Graduate Work Stream when she intended to apply for the Post-Study Work Stream. The delegate had refused the application based on the applicant not meeting clause 485.223, a requirement for the Graduate Work Stream. However, the Tribunal found that the applicant met clause 485.231, which is relevant to the Post-Study Work Stream. This was based on her holding a Bachelor of Accounting from Swinburne University of Technology, a specified qualification, and providing a letter of completion dated 12 February 2019, satisfying the Australian study requirement.

Consequently, the Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration. The Tribunal directed that Mrs Magammulla met the criterion specified in clause 485.231 of Schedule 2 to the Regulations, and the application of Mr Omila Kumarasinghe was to be reconsidered on this basis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE At the hearing the applicant’s migration agent provided a submission in which he stated the applicant had lodged her application without any migration assistance and at the time, did not believe she needed a Skills Assessment because she thought she was applying under the Post-Study Work Stream. She only realised she had applied for the wrong stream after receiving the refusal notification on 3 May 2019. The applicant confirmed that in her application she had incorrectly indicated that she met the Graduate Work Stream requirements but had intended to meet the Post Study Work Stream requirements. From the evidence presented the Tribunal is satisfied that the applicant has lodged a valid visa application in satisfaction of Schedule 1 requirements. The delegate refused her application on the basis she did not satisfy clause 485.223 which is a mandatory requirement for an application under the Graduate Work Stream application. As she now seeks to satisfy the requirements for the Post Study Work Stream requirements, the relevant clause that she needs to satisfy is clause 485.231. 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 relevant instrument for this purpose is IMMI 13/013. The issue in the present case is whether the applicant meets those requirements. In this case, the applicant holds a Bachelor of Accounting from Swinburne University of Technology which is a qualification specified in that instrument. She provided a “Letter of Completion” from Swinburne University of Technology which stated that the course completion date was 12 February 2019. Accordingly, cl.485.231 is met. On the basis of the above findings, the Tribunal finds that the first named 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. Having found that the primary applicant Mrs Sampada Magammulla meets the essential criteria referred to above, the appropriate course is to remit the application of the secondary applicant Mr Omila Kumarasinghe for reconsideration.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 criterion for a Subclass 485 visa:·cl.485.231 of Schedule 2 to the Regulations.Tim ConnellanMember

Decision

Reasons for decision

Having found that the primary applicant Mrs Sampada Magammulla meets the essential criteria referred to above, the appropriate course is to remit the application of the secondary applicant Mr Omila Kumarasinghe for reconsideration.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 criterion for a Subclass 485 visa:·cl.485.231 of Schedule 2 to the Regulations.Tim ConnellanMember

Ratio Decidendi

Legal Principle Established

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