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

1. 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).

2. 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.

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 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.

4. The applicant appealed the decision to be reviewed by the Tribunal.

5. The primary applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. She only realised she had applied for the wrong stream after receiving the refusal notification on 3 May 2019.

10. 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.

11. From the evidence presented the Tribunal is satisfied that the applicant has lodged a valid visa application in satisfaction of Schedule 1 requirements.

12. 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.

13. 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.

14. 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.

15. The issue in the present case is whether the applicant meets those requirements.

16. 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.

17. Accordingly, cl.485.231 is met.

18. 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.

19. 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

20. 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 Connellan
    Member