Ng (Migration) - [2022] AATA 2172

Ng (Migration) [2022] AATA 2172 (8 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Cheuk Man Ng
REPRESENTATIVE:  Mr Minghuang Yan (MARN: 1572947)
CASE NUMBER:  2117353
HOME AFFAIRS REFERENCE(S):          BCC2021/157846
MEMBER:Alison Mercer
DATE:8 June 2022
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 criteria for a subclass 485 visa:
·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 8 June 2022 at 5:56pm

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 – applicant mistakenly selected the incorrect stream – mistake was clearly unintended – application was substantially in compliance with the requirements for Post-Study Work – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 8 November 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 25 January 2021. 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.
The delegate refused the visa because the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations, which requires that if an applicant has applied in the Graduate Work stream, the visa application is accompanied by evidence that the applicant has applied for a skills assessment from the appropriate body for their nominated occupation. The delegate found that the applicant had applied in the Graduate Work stream but had answered ‘no’ to the question of whether he had applied for a skills assessment.
The Tribunal received a review application from the applicant on 28 November 2021. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Minghuang Yan as his representative and authorised recipient for correspondence.
On 8 April 2022, the Tribunal wrote to the applicant to invite him to attend a telephone hearing on 4 May 2022. He was asked to indicate whether he would attend as soon as possible and to provide any additional material in support of his case no later than 1 week before the hearing.
On 19 April 2022, the applicant indicated via his agent that they would attend the hearing.
The applicant appeared before the Tribunal by telephone on 4 May 2022 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who participated by telephone as well.
On the morning of the hearing, the Tribunal received legal submissions from the applicant’s agent, together with supporting documents:
…
We act on behalf of the above-named review applicant in relation to the Case Number 2117353.
We submit in general that the review applicant’s 485 visa application can be assessed against the criteria as specified for the Post Study Work stream notwithstanding that he has applied under the Graduate Work stream. We further submit that the review applicant meets the requirements for the Post Study Work stream, namely, Clause 485.231 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Accordingly, the review applicant, Mr. Ng’s application shall be remitted for reconsideration.
Summary of Background
1.Mr. Ng was enrolled in a Bachelor of Physiotherapy (Honours) at Monash University on 02 March 2015.
2.Mr. Ng completed her Bachelor study on 17 December 2020 and was subsequently conferred a Bachelor degree of Physiotherapy (Honours) on 25 May 2021.
3.Mr. Ng lodged the application for a subclass 485 visa on 25 January 2021. In his application, he sought to satisfy the primary criteria for the subclass 485 visa under the Graduate Work stream.
4. Mr. Ng’s visa application was refused on 08 November 2021.
Ground for Refusal
The delegate refused to grant the visa on the basis that Mr. Ng did not meet Clause 485.223 of Schedule 2 to the Regulations specified for the Graduate Work stream. This arose because the delegate determined that Mr. Ng had not applied for a skills assessment prior to the date of making his visa application as required for that stream.
Issues
The first issue therefore in the present case lies in whether Mr. Ng’s visa application can be assessed against the alternate Post Study Work stream, in order for him to meet Clause 485.231 of the Regulations. If so, the second issue would be whether Mr. Ng meets the criteria for the Post Study Work stream as stipulated in Clause 485.231 of the Regulations.
Relevant AAT Decisions
A number of previous AAT decisions have shed light on whether the Tribunal is confined to consider the 485 visa application only against the stream as indicated on the application form, in the circumstances where the applicant substantially complied with the visa application form for the alternate stream. These decisions further provide that it is a matter of fact for the Tribunal to find out whether the applicant did intend to apply for a subclass 485 visa under the stream as opposed to the one nominated in the application and if so, it is open for the Tribunal to assess the applicant’s application against the criteria for the alternate stream.
In Davey,1 the applicant has inadvertently applied for the Post Study Work stream instead of the Graduate Work stream, for which he was intended to apply as he was able to meet the requirements for that stream. The reason for selecting the wrong stream was because of his agent’s error in ticking the incorrect box. Based on this, the Tribunal is satisfied and finds that the applicant did intend to apply for the Graduate Work stream. It is also noted from the decision that the legislation does not expressly exclude a valid 485 visa application from being considered against the criteria for both streams and therefore the Tribunal is able to assess the application against a stream differing from the one apparently indicated on the application form.
In PRAJAPATI,2 the applicant was misled by the wording of the phrase “Graduate Work Stream” at the time of application and therefore chose the Graduate Work stream as the more appropriate stream for her as she had just graduated from the University with her Bachelor degree. The applicant further conceded that her inadvertent selection of the wrong stream was also because of not seeking expert legal advice and lack of appropriate legal knowledge and experience. The Tribunal agrees that a 485 visa application can be assessed against a different stream if there is substantial compliance with the application form. Having regard to the submissions of the applicant, the Tribunal is satisfied that the applicant genuinely did not understand that she was applying under the incorrect stream and the common reason for this is because many applicants, who do not have English as their first English, have language difficulties in understanding the process and wording of confusing nature involved in the application. Based on its findings, the Tribunal determines that it is able to assess the applicant’s application against the requirements for Post Study Work stream set out in Clause 485.231 of the Regulations.
In Sansurooah,3 analogous to PRAJAPATI, the Tribunal makes a finding in favour of the applicant despite that their circumstances differ. In this case, the applicant was told by her university faculty she was eligible to apply for a subclass 485 Graduate visa upon the completion of her studies. The applicant was further advised that she was not required to provide the skills assessment evidence for her 485 visa application as she graduated from a higher education degree. It was in such circumstances where the applicant applied under the wrong stream of Graduate Work and did not apply for a skills assessment prior to making her 485 visa application as required by that stream.
Arguments and Evidence
Having regard to the statement and supporting documents provided by Mr. Ng, by analogy with the previous AAT decision aforementioned, we respectfully submit that Mr. Ng is able to satisfy the Tribunal that he did intend to apply for a Post Study Work stream rather than a Graduate Work stream at the time of his application and therefore his application shall be able to be assessed against the alternate criteria as required for a subclass 485 visa under the Post Study Work stream. Based on the evidence before us, we further submit that Mr. Ng meets the requirements of Clause 485.231 of the Regulations. In this respect, his visa application shall be remitted for reconsideration by the Department.
Intention to apply for a subclass 485 visa under the Post Study Work stream
We are instructed by Mr. Ng that he was intended to apply for the Post Study Work stream but mistakenly selected the incorrect stream due to a number of factors.
First, it was Mr. Ng himself who made the visa application without any professional assistance. When filling the application form, as he graduated with a Bachelor degree in Physiotherapy which is a practical subject, he misconstrued the wording of “Graduate Work” and “skills assessment” as “after graduation” and “skilled worker”. Based on this understanding, from Mr. Ng’s perspective, he was of the view that this was consistent with his circumstances at that time. As a consequence, Mr. Ng applied for the wrong stream which was not really intended. But for his mistaken understanding and lack of necessary professional assistance, he would have identified the right stream.
Further, Mr. Ng also conducted research by himself on the requirements of “skills assessment” from the official website for the Department of Home Affairs. There is available information indicating that skills assessment is required for a nominated occupation in a subclass 485 visa application (Graduate Work stream). Mr. Ng clicked into the link for the list of nominated occupations and he found his occupation, ‘Physiotherapist’, was within that list. With that impression, Mr. Ng genuinely believed that he needed to select the stream with skills assessment required, which is the Graduate Work stream.
Finally, according to Mr. Ng’s statement, he did not seek any expert legal advice on the specific requirements for a subclass 485 visa but solely relied on his own knowledge when making the application. In addition, there was no other person assisting to double check his visa application before the final submission. In the absence of expert legal advice and additional assistance, he failed to detect his mistake in selecting the wrong stream for which he was not eligible.
Due to the above combined factors, Mr. Ng selected the wrong stream which was obviously not within his real intention. Importantly, he did not apply for a skills assessment prior to the lodgement of his 485 visa and this is a strong indicator that he prepared all documents and information specifically for the Post Study Work stream rather than the Graduate Work stream. As such, we respectfully submit that Mr. Ng was in fact intending to apply for the Post Study Work stream and his application was substantially in compliance with the requirements for that stream.
Meeting the requirements of Clause 485.231 of the Regulations
In accordance with the Clause 485.231 of the Regulations, the applicant is required 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.
In the present case, Mr. Ng holds a Bachelor degree of Physiotherapy (Honours) which is a qualification specified by the Minister in the legislative instrument of IMM 13/013. His qualification was conferred or award by Monash University which is an eligible educational institution as specified in the legislative instrument of IMMI 13/031.
Further, based on the available information, it is apparent that the Bachelor of Physiotherapy (Honours) is a registered course and was undertaken from 02 Mar 2015 to 17 Dec 2020. As such, his Bachelor (Honours) degree was completed more than 16 calendar months as a result of a total of 5 academic years study. In addition, Mr. Ng held a student visa before ceasing on 15 Mar 2021 and therefore he undertook his Bachelor study as a student visa holder in Australia. Accordingly, he satisfies the Australian study requirement.
In accordance with the application form, Mr. Ng made his visa application on 25 Jan 2021 and he completed his Bachelor study on 17 Dec 2020. Therefore, he completed her Australian studies within the period of 6 months ending immediately before the day the application was made.
In light of the above, we respectfully submit that Mr. Ng meets the requirements for Clause 485.231 of the Regulations.
Conclusion
In conclusion, we respectfully submit that Mr. Ng’s application is able to be considered under the Post Study Work stream and he also meets the requirements for that stream. Accordingly, the application shall be remitted for reconsideration.
We appreciate your kind consideration and assistance with the review application. If you are requiring more information, please do not hesitate to contact us.
…
The accompanying documents were the applicant’s degree testamur, his academic transcript and letter of completion and evidence of his student visa status.
At the hearing, the applicant said that at the time of his application for the subclass 485 visa, he knew that there were different streams, and he intended to apply in the Post Study Work (PSW) stream but mistakenly chose the Graduate Work (GW) stream. He noted that he applied online himself, without assistance. When he saw a reference to Graduate Work in the online form, he mistakenly thought that applied to him as he was a graduate. He further noted that even when he answered ‘no’ to the skills assessment question, the online application allowed him to proceed, so he was not alerted to the fact that he could not meet a mandatory requirement for the GW stream and which would have prompted him to have checked to make sure he was applying in the PSW stream, as he had intended. He said that the confusion was contributed to when he looked at information on the Department website concerning GW stream occupations and his occupation (Physiotherapist) was listed. The applicant told the Tribunal that at the time he made his application, he was reliant on his own research – he could not afford to pay for professional migration advice, as his part time work had ceased due to the COVID19-related lockdowns in Melbourne, and he did not have any classmates to ask, as his course completion was delayed by illness so most of his friends and classmates had already completed their courses. He noted also that he was under pressure to make the application before his student visa expired in March 2021. The applicant told the Tribunal that nothing in the online form alerted him to the fact that when he answered ‘no’ to the skills assessment question, he would not meet the GW stream requirements, as this would have made it clear that he had applied in the wrong stream. He said that he had no idea he had applied in the wrong stream until he received the Department refusal decision.
The applicant’s agent acknowledged that the previous Tribunal decisions he cited in his submissions were not binding, but noted that the circumstances in those cases were analogous to those of the applicant, and urged the Tribunal to determine the applicant’s case favourably.
The Tribunal noted that the requirements of Schedule 1 to the Regulations, and caselaw, indicated that applicants had to select 1 stream only (either Graduate Work (GW) or Post Study Work (PSW)) and were not able to be assessed against the stream not selected, unless it could be established that they had genuinely intended to apply for the PSW stream but had accidentally clicked on the GW stream option in the drop-down menu in the online visa application (or vice versa).
The applicant’s agent noted that the applicant met all of the Schedule 1 requirements for the PSW stream, and it was a genuine mistake to have applied in the GW stream.
At the conclusion of the hearing, the Tribunal agreed to defer its decision in order for the agent to provide additional submissions seeking to distinguish the applicant’s circumstances from those considered by the Federal Circuit Court of Australia in the recent case of Ahmad.
On 18 May 2022, the Tribunal received the following additional legal submissions from the applicant’s agent:
…
Further to the submission made on 03 May 2022, we would like to provide this written submission in response to your request for addressing some specific issues. We are well informed of the rationale as entailed in Singh1 and Abdul2, which may be relevant to the consideration of the current review application. However, we are of a different opinion that the decisions in these cases are irrelevant to decide the factual issues at the stage of merits review and therefore shall not be applied to the present case, in which the main issue lies in the role of the Tribunal to make correct or preferable decisions based on its fact-finding, having regard to all available evidence at time of the decision.
We also respectfully submit that the issue of which stream the review applicant has made in is a question of fact for the Tribunal and as such the Tribunal is not bound by the aforementioned decisions which are only binding in determining the legal issues relevant to the present case. We would like to further demonstrate and elaborate more with respect to our propositions.
Distinction between judicial review and merits review
Judicial review is a creature of the common law. Legislation sometimes may also confer upon courts a power to hear appeals on a question of law from tribunal decisions.3 In judicial review, the Court is empowered to determine whether a decision-maker made an error of law and the appellant is required to prove that errors of law has been involved when challenging tribunal decisions. In this regard, a decision on factual matters is not reviewable unless it discloses an error of law as demonstrated by excess of power or abuse of power.
By contrast, merits review is exclusively a creature of statute. In merits review, the Tribunal evaluate and substitute the correct or preferable decision by standing in the place of an original decision maker, as opposed to enforcing the law and set aside legally flawed decisions. In this respect, the Tribunal in merits review has the opportunity for a more intensive examination of all circumstances as relevant to the determination of a factual issue.
Because of their distinctive roles in judicial review and merits review respectively, the Tribunal is able to conduct a more flexible investigation into the factual issue and achieve a correct or preferable outcome based on the merits of the case. This is clear a step beyond judicial power.
Distinguish Singh and Abdul with AAT-decided cases
In Singh4, the appellant intended to apply under the Post-Study Work stream but mistakenly applied for a visa in the Graduate Work stream when completing the online application. As the appellant had not applied for an assessment of the nominated occupation, he did not satisfy that criterion required for the Graduate Work stream. Similar to Singh5, the appellant in Abdul6 applied for a subclass 485 visa in the Graduate Work Stream albeit that he could have applied in the Post-Study Work stream. However, he did not meet the requirement in the Graduate Work stream of having a skills assessment at the time of the application.
In both cases, the Court was asked to determine the legal issue as to whether it was open to the Tribunal to grant the appellants a visa for which they intended to apply. In accordance with the judge’s reasoning in both cases, the common factual basis for the Court to decide the legal issue in question was that no application had been made in the Post-Study Work stream for a subclass 485 visa. Based on such given fact, the Court ruled that there is no legal basis for the Minister and the Tribunal to grant a visa in the Post-Stud Work stream if the given fact was that the application was made in the Graduate Work stream.
After Singh and Abdul, in the subsequent AAT-decided cases, the Tribunal invariably took into account the review applicant’s intention when making the visa application in determine the factual issue as to whether the review applicant had in fact applied for a subclass 485 in the Post-Study Work stream.7 Apparently, in those cases, the Tribunal distinguished itself from the role of the Court in a judicial review where the Court is required to resolve the dispute in a legal issue other than a factual issue.
Importantly, the reason why the Court in these cases did not make reference to the applicant’s intention when making their visa application is because this may invite the Court to consider the merits of their application and as such would contradict the Court’s role in a judicial review. In this respect, the capacity of the Tribunal to consider the review applicant’s intention in defining the given fact is a strong indicator that the decisions in Singh and Abdul shall be properly distinguished with the subsequent AAT-decided cases.
In the first instance, the Court in Singh and Abdul is required to determine a legal issue based on the given fact while the Tribunal plays an inquisitorial role in making factual findings. The bases forming their respective decision are therefore distinguished, with the Court being legal basis and the Tribunal being factual basis. Further, in Singh and Abdul, the Tribunal had found that the appellant did not make the application in the Post-Study Work stream, while in the subsequent AAT decided cases the Tribunal was satisfied that the review applicant in fact had made the application in the Post-Study Work stream. From this perspective, the Court in Singh and Abdul made its decision based on the facts which are distinguished from that in the subsequent AAT-decided cases.
In light of the above, given the distinguishable issues and facts, the decisions in Singh and Abdul are not binding on the Tribunal in determining the factual issue at the stage of merits review.
The Tribunal’s role in a merits review
As the primary purpose for the Court in a judicial review case is to correct legal errors in applying the relevant law on the part of administrative decision makers, the Court has no role to play in fact-finding and subsequently defining the given fact. All decisions made by the Court are based on the fact as determined by the Tribunal during the course of merits review. As such, the Tribunal is in a better position to determine the contentious facts, having regard to the probative value of the evidence provided by the review applicant.
In the present case, given the Tribunal’s role in a merits review, although the review applicant cannot change the stream in which they have applied once the application has been made and the Tribunal cannot consider any stream other than the one applied in, the issue as to which stream an application was made in is a question for the Tribunal and it is open to the Tribunal to make a factual finding about the stream in which the application had actually been made in.
If the Tribunal were to find as a question of fact that an application was made in a particular stream notwithstanding how the application form itself had been completed, the Tribunal would be obliged to consider the application against that stream. In doing so, the Tribunal does not exercise its power to change the stream in which the application has been made, but rather determines a factual issue as to which stream the application has in fact been made in. This process does not involve any judicial consideration of legal issue and it is not inconsistent with the Tribunal’s role.
The rules of evidence
The relevant statutory provisions have made emphasis on the significance of the Tribunal’s accessibility, informality and procedural and evidentiary flexibility. 8 Consistent with this, the Tribunal is not bound by the rules of evidence is able to admit fresh evidence in addition to the one having been provided to the original decision maker.9 In this regard, the tribunal is in a better position to make a correct or preferable decision having regard to all evidence before it. This process centres on defining the given fact based on available evidence to ensure no factual errors have incurred.
In the present case, the Tribunal has the capacity to adopt both written and oral evidence as relevant to the consideration of the review application’s claimed intention when making a factual finding as to which stream the application has been made in. This has been evidenced in a number of AAT cases decided after Singh and Abdul. In this sense, it is open to the Tribunal to have regard to the review applicant’s intention in order to determine the factual issue in question. Since the Tribunal in the preceding cases has considered the applicant’s claimed intention as relevant to the same factual issue, it would be unreasonable in the present case that the Tribunal has not taken into account the same matter. In the absence of such consideration, the Tribunal’s decision might be susceptible to the potential perceptions of apprehended bias.10
Conclusion
In conclusion, we reinforce our submission that in the present case the Tribunal is not asked to alter its legal position in order for it to grant the review applicant a subclass 485 visa under the Post-Study Work stream. Rather, the Tribunal can exercise its power effectively within the statutory regime and consistent with the nature of merits review to make a correct factual finding as it thinks fit, having regard to all evidence before it at the time of making its decision.
By reference to the evidence provided in the present case and by analogy with the facts from the aforementioned relevant AAT-decided cases, we respectfully submit that the Tribunal shall make a finding in favour of the review applicant that Mr. Ng in fact made an application under the Post-Study Work stream. Accordingly, he shall be assessed against the criteria as required for the Post-Study Work stream.
…

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
In his visa application, the applicant indicated that he was seeking to satisfy the primary criteria for a subclass 485 visa in the Graduate Work stream, which includes 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. In particular, cl.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’.
It is not disputed that the applicant did not provide evidence that he had applied for a skills assessment prior to making his visa application, and in fact, he acknowledged that he had not done so.
The applicant claimed that he had selected the wrong stream in the ‘drop down’ menu when completing the subclass 485 visa application online, and intended to apply in the ‘Post Study Work’ stream. This is significant, as there is no equivalent requirement to cl.485.223 in the Post Work Study stream criteria.
The requirements for making a valid subclass 485 visa application are set out in Schedule 1 to the Regulations. Item 1229(3)(j) states that an applicant must specify in which stream they are applying:
(j) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa must nominate only one stream to which the application relates.
This indicates that it is not possible for an applicant to apply in the Graduate Work stream, and later seek to apply in the Post Study Work stream instead (or vice versa).
There is some case law on this issue, which the Tribunal must also consider and apply, if it is relevant, binding, and on all fours with the circumstances in this case. In particular, the Tribunal notes that in Singh v MICMSMA [2020] FCA 774 at [66]-[67], the Court held the Minister has no power to grant the applicant a visa in a stream other than the one in which the applicant applied, and the Tribunal has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister. In that case, the applicant had submitted that they had made a mistake in applying in the Graduate Work stream and claimed to have intended to apply for the alternate Post Study Work stream. The Court did not have regard to the applicant’s intention and instead considered that the applicant had made a valid application for a visa in the Graduate Work stream. It is unclear to the Tribunal why the Court did not have regard to the applicant’s claimed intention and whether this was because it considered it irrelevant or that it was not a claim made to the Tribunal. The Tribunal notes that recently, in Abdul v MIBP [2021] FCCA 349, the Court applied Singh in finding that the applicant had applied in the Graduate Work stream and the Tribunal did not have the power to permit the applicant to substitute a Post Study Work stream application. In that case, the applicant had submitted to the Tribunal that he had not appreciated the different stream requirements and had mistakenly applied in the Graduate Work stream as he had just graduated.
Following these cases, it appears to the Tribunal that legally, an applicant cannot change streams and the Tribunal can only consider the stream that the application has been made in. Therefore, as a starting point, it is a finding of fact for the Tribunal as to which application has been made; that is, whether the applicant applied for a subclass 485 visa in the Graduate Work stream or whether they applied for a subclass 485 visa in the Post Study Work stream. As an applicant must satisfy Schedule 1 requirements to make a valid visa application, they also need to demonstrate that they satisfied any stream specific requirements.
For a valid visa application to have been made in the Post Study Work stream, the applicant needs to satisfy its Schedule 1 requirements. For the Post Study Work stream, the applicant must hold, or have held, their first student visa granted on the basis of a post 5 November 2011 application. If they do not satisfy this requirement, then they cannot be considered against the Post Study Work criteria and would need to be considered against the Graduate Work criteria. The fee, location and form requirements are the same for both streams.
In the Tribunal’s view, the Tribunal may make a factual finding that, notwithstanding the stream selected in the form, the applicant had, in fact, made an application for a visa in a different stream and had substantially complied with the visa application form for that stream. This is supported by the two matters which were remitted by consent by the Federal Circuit Court, BRG368/2017 (Tribunal decision 1611832) and SYG3039/2016 (Tribunal decision 1608584). While these matters were remitted before Singh and Abdul, the Tribunal’s view is that the facts in these matters can be distinguished from those considered in Singh and Abdul. In both consent remittal matters, the applicants raised claims at the Tribunal that they had intended to apply for a stream other than the one indicated on their visa application form, had substantially complied with the visa application form and met Schedule 1 requirements for the alternative stream. The reasons for consent given were that the Tribunal had committed a jurisdictional error by only considering the application made in the Graduate Work stream when the applicant had substantially complied with the visa application form for the Post Study Work stream, the stream they intended to apply for. However, the Tribunal is not aware of any judgment that has distinguished Singh and Abdul.
In the Tribunal’s view, a finding of fact on which stream the applicant applied for must be based on the evidence before it. Given it is unclear why in Singh the Court did not have regard to the applicant’s claimed intention to have applied in the alternate stream, it appears open to the Tribunal to consider claims about an applicant’s ‘intention’ when making a factual finding as to which application was made. Moreover, it considers that evidence provided with the application that the applicant satisfies a criterion unique to one stream may support a finding that the application was, in fact, for the stream for which that evidence was relevant. For example, if an applicant has selected Post Study Work stream but has nominated an occupation and included a skills assessment with their application (as required in the Graduate Work stream), and states that they intended to apply for a visa in the Graduate Work steam, this may indicate that their application was, in fact, for a visa in the Graduate Work stream. Conversely, if no occupation was nominated and no skills assessment provided with, or referred to in, the application, and the applicant states that they intended to apply in the Post Study Work stream, this may support a finding that the applicant did not intend to apply in the Graduate Work stream but rather in the Post Study Work stream.
As discussed at hearing, to satisfy the criteria in the Post Study Work stream, in addition to meeting the Australian study requirement as defined in reg 1.15F, an applicant must hold a qualification of a kind specified by the Minister from a specified institution: cl 485.231(1)-(2). The relevant instruments provide that an applicant must have a qualification obtained from study at Australian Qualification Framework (AQF) level 7 or higher, including a Bachelor Degree, Masters Degree or Doctoral Degree from a CRICOS-registered education provider that offers courses at the degree level and above.
The Tribunal notes that these requirements can be distinguished from the general Australian study requirement, which applies to both streams, as the Australian study requirement can be met with qualifications below AQF level 7, including Diploma and trade (Certificate) qualifications. In the Tribunal’s view, if an applicant provided evidence in their application that was made using the Graduate Work form that they held a qualification that met the requirements of cl 485.231(1) and (2), this too might support a finding that they had in fact applied for a visa in the Post Study Work stream.
The matter has been considered in other Tribunal decisions besides the ones cited by the applicant’s agent, including:
·Kamel (Migration) [2020] AATA 463 (7 January 2020) (remit)
While these previous decisions made by other Tribunal Members are not binding on the Tribunal (differently constituted) in the present case, the Tribunal has had regard to them.
In this case, the Tribunal gives weight to the fact that:
·the applicant has consistently stated that his intention was to apply in the Post Study Work stream and he selected the Graduate Work stream from the drop down menu by accident while completing the online subclass 485 visa application;
·he did not have a migration agent or lawyer assisting him at that time; and
·the applicant completed a Bachelor degree (Honours) in Physiotherapy at Monash University prior to making his visa application.
This indicates to the Tribunal that his intention was to apply in the Post Study Work stream, and not the Graduate Work stream. However, it further notes that in his online application he nominated an occupation (Physiotherapist), even though he did not provide a skills assessment from the relevant assessing authority or indicate that he had applied for one. This suggests that he may have intended to apply in the Graduate Work stream. At hearing, the applicant emphatically told the Tribunal that he intended to apply in the Post Study Work stream and this is what he believed that he had done until he received the Department refusal letter.
On balance, the Tribunal considers it appropriate to extend the benefit of the doubt in this case, and it finds that the applicant in fact applied in the Post Work Study stream, despite selecting the Graduate Work stream from the drop down menu while completing the online visa application.
Further, the Tribunal is satisfied that the applicant substantially complied with the Schedule 1 requirements for the Post Study Work stream, as he paid the correct fee, used the correct form, and (according to the Department’s records) he held his first student visa granted on the basis of a post 5 November 2011 application at the time he applied for the subclass 485 visa (his subclass 573 visa was granted on 25 October 2013 and expired on 15 March 2020).
Post Study Work stream requirements
In addition to the Schedule 1 validity requirements, the applicant must satisfy the Post Study Work stream requirements set out in cl.485.231:
485.231
(1)  The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2)  Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3)  The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
…
Reg 1.15F    Australian study requirement
(1)  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:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d)  for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note:    Academic year is defined in regulation 1.03.
(2)  In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note:   The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
IMMI 13/013 provides that the specified qualifications referred to above for the purposes of cl.485.231(1) and (2) are:
·Bachelor Degree;
·Bachelor (Honours) Degree;
·Masters by Coursework Degree;
·Masters by Research Degree;
·Masters (Extended) Degree and/or;
·Doctoral Degree.
IMMI 13/031 provides that the specified educational institutions are those that are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.
In this case, the letter of completion dated 21 December 2020 from Monash University provided by the applicant indicates that:
·he completed a Bachelor of Physiotherapy (Honours) degree at Monash University on 17 December 2020, having undertaken this course between 5 March 2015 and 17 December 2020. It is stated that the course was full time and taught in English.
The Tribunal is satisfied that the applicant’s course and course provider are both specified for the purposes of cl.485.231, and that he completed his Bachelor (Honours) degree within 6 months of making his subclass 485 visa application on 25 January 2021. The Tribunal is satisfied that this qualification meets the Australian study requirement in r.1.15F as:
(a) it is a registered course; and
(b) it was completed in a total of at least 16 calendar months; and
(c) it was completed as a result of a total of at least 2 academic years study; and
(d) all instruction was conducted in English; and
(e) the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
It follows that the applicant meets the requirements of cl 485.231.
On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.231 of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
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.
Alison Mercer
Member