Min (Migration)

[2022] AATA 2008

Min (Migration) [2022] AATA 2008 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gia Min

REPRESENTATIVE:  Mr Sang Ik Moon (MARN: 1069258)

CASE NUMBER:  2114729

HOME AFFAIRS REFERENCE(S):          BCC2019/6548013

MEMBER:Michelle East

DATE:6 May 2022

PLACE OF DECISION:  Perth

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

Statement made on 06 May 2022 at 10:26am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant did not apply for the required skills assessment with the appropriate authority prior to the lodgement of her visa application – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.223

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 15 October 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 9 December 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused 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 her visa application.

4. The applicant appeared before the Tribunal on 5 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is 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.

   Had the applicant applied for a relevant skills assessment?

9. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

10. ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument LIN 19/051.

11. On the evidence before the Tribunal, the applicant nominated the occupation of Early Childhood (Pre-Primary School) Teacher which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is AITSL.

12. The applicant provided a statutory declaration prior to the hearing.  In that declaration she said because her first student visa was approved in 2009, she could not meet the visa requirements for a Post-Study Work stream visa. 

13. The applicant and her representative referred to the Department’s website that gave her information regarding the Temporary Graduate Visa.  A screenshot of what she was referring to was provided to the Tribunal after the hearing.  That extract from the website states the following:

    Graduate Work stream – this visa is for international students who have recently graduated with skills and qualifications that are relevant to specific occupations Australia needs.  It lets you live, study and work in Australia temporarily.

    Post-Study Work stream – this visa is for international students who have recently graduated with a degree from an Australian institution.  It lets you live, work and study in Australia, temporarily. 

14. If the applicant had applied for the Post-Study work stream visa she would need to meet the Schedule 1 requirements.  Relevantly, item 1229(3)(l) requires an applicant to have held a student visa at a particular time. 

    An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream:  

    (i)  must hold a Student Temporary (Class TU) visa that: 

    (A)  was granted on the basis of an application made on or after 5 November 2011; and

    (B)  is the first Student Temporary (Class TU) visa that the applicant has held; or 

    (ii)  must have held a Student Temporary (Class TU) visa that:

    (A)  was granted on the basis of an application made on or after 5 November 2011; and

    (B)  was the first Student Temporary (Class TU) visa that the applicant had held.  

15. The Regulations make it clear that in order for the applicant to be eligible to be granted a visa in the Post-Study Work stream she must have held a student visa on or after 5 November 2011

16. A review of the applicant’s movement records indicates that she was granted her first student visa in 2009.

17. The applicant’s application therefore must be assessed against the criteria for the Graduate Work stream visa.

18. At the time the applicant made her visa application, it was not accompanied by evidence that she had applied for a skills assessment for the nominated occupation by the relevant assessing authority.

19. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl 485.223.

20. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Michelle East
    Member