Mak (Migration)

[2019] AATA 4608

Mak (Migration) [2019] AATA 4608 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pui Sze Mak

CASE NUMBER:  1910778

HOME AFFAIRS REFERENCE(S):           BCC2019/485003

MEMBER:Tim Connellan

DATE:9 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 9 October 2019 at 2:58pm

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), r 1.15F; 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 12 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 February 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 is 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 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 applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her 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. The applicant told the Tribunal she lodged her application believing she did not need a Skills Assessment because she thought she was applying under the Post-Study Work Stream as she had been working as an Occupational Therapist having completed a Bachelor of Science (Occupational Therapy) at Curtin University.

9. She only realised she had applied for the wrong stream after receiving the refusal notification on 12 April 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. In a post hearing submission, the applicant provided evidence she had completed her Bachelor of Science degree on 5 December 2018 and lodged her student visa application on 15 February 2019.

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

13. 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.

14. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    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?

15. 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.

16. In this case, the applicant holds a Bachelor of Science (Occupational Therapy) which is a qualification specified in that instrument.

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

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

18. 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 13/031.

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

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

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

21. 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.

22. Under r.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.

23. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.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.

24. The Academic Transcript provided indicates the applicant successfully completed a Bachelor of Science (Occupational Therapy) course which is listed as a four year course which she completed on 5 December 2018.

25. .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.

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

27. 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

28. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations.

    Tim Connellan
    Member