Nguyen (Migration)

[2019] AATA 4538

Nguyen (Migration) [2019] AATA 4538 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Minh Thu Nguyen

CASE NUMBER:  1915268

HOME AFFAIRS REFERENCE(S):           BCC2019/1287567

MEMBER:Michelle East

DATE:29 July 2019

PLACE OF DECISION:  Perth

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 29 July 2019 at 1:57pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Graduate Chemical Engineer – skills assessment application not submitted – applied for visa in incorrect stream – application assessed against requirements for Post-Study work stream – full-time degree for four calendar years – courses completed in English – Australian study requirement met – timeframe requirements met – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.15, 2.26AC(6),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 4 June 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 14 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.223 as she had not applied for a skills assessment prior to the date of the visa application as is required for the Graduate Work stream of the visa for which she had applied.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 13 June 2019.

5. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant’s favour on the basis of the material before it.

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’s visa application states that she applied for the visa seeking to satisfy the primary criteria for the Subclass 485 visa in the Graduate Work stream.  The delegate determined that a criterion for the visa in that stream was not satisfied because the applicant had not applied for a skills assessment prior to the date of the visa application as required for that stream.

9. The applicant could have applied for a visa in the Post Study Work stream which would not have required the skills assessment to have been obtained prior to the date of the visa application.

10. The issues to be determined by the Tribunal are:

    -Can the applicant’s visa application be assessed against the criteria for the Post Study Work stream, and if so,

    -Are the criteria for the Post Study Work stream met?

    Can the applicant’s visa application be assessed against the criteria for the Post Study Work stream?

11. To make a valid visa application for a Subclass 485 visa, item 1229(3)(j) in Schedule 1 requires an applicant to nominate only one stream to which the application relates.  Once the applicant nominates a stream, item 1229(3)(k) requires an applicant to nominate a skilled occupation (if seeking to satisfy the primary criteria in the Graduate Work stream) and item 1229(3)(l) requires an applicant to have held a student visa at a particular time (if seeking to satisfy the primary criteria in the Post-Study work stream).

12. Therefore, if an applicant nominates one stream to which the application relates and meets either item 1229(3)(k) or 1229(3)(l), the applicant will have made a valid visa application.

13. The Tribunal has reviewed the Departmental file and finds the other Schedule 1 requirements have been met.

14. The Tribunal notes that the terms of Schedules 1 and 2 do not expressly prohibit an applicant from being considered against the criteria in either stream or from changing streams after the initial application.

15. The applicant provided a submission to the Tribunal dated 26 June 2019.  She stated as follows:

    I would like to give an explanation of why I did not provide skills assessment at the time that I had applied for the Temporary Graduate visa, and the situation I am in.

    Firstly, I would like to admit my mistake when interpreting the eligibility of the two visa work-streams under visa sub-class 485.  I assumed (incorrectly) that, I have graduated Bachelor of Chemical/Process engineer, thus ‘Graduate Work Stream’ is applicable for my case; whereas, the ‘Post Study Work Stream’ is designed for Masters and PhD graduates.  With such misunderstanding, I applied ‘Graduate Work Stream’ which resulted in visa refusal.  If I had known ‘Post Study Work Stream’ the correct choice of my case, I would not have been in a position that I am at present’.

16. The applicant further stated that she has been able to secure work as a graduate process engineer and is ‘excited to enter the workforce to further enhance my exposure and experience towards the industry that I am passionate about.  My long-term goals are to continuously develop my professional skills and contribute to the success of Australian mining industry.’

17. The applicant provided evidence of her employment as a Graduate Chemical Engineer and a Migration Skills Assessment Accredited Qualification from Engineers Australia.  She was awarded a Bachelor Honours Degree from Curtin University in December 2018.

18. The Tribunal is satisfied that the applicant genuinely did not understand she was applying for the visa in the incorrect stream.

19. The Tribunal finds it is able to assess her application against the requirements of cl.485.231.

    Are the criteria for the Post Study Work stream met?

20. 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?

21. 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.  In this case, the applicant holds a Bachelor (Honours) Degree which is a qualification specified in that instrument.

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

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

23. 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 IMMI 13/031.

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

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

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

26. 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.

27. 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.

28. ‘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).

29. Information provided by the applicant to the Department demonstrates the applicant undertook a Bachelor of Engineering with Honours between 2015 and 2018, four years’ full time study.  She completed her course on 7 December 2019 and was conferred with a Bachelor of Engineering (Chemical Engineering)(Honours) on 11 January 2019.  This constitutes a ‘degree’ as defined in r.2.26AC(6).

30. The Tribunal is satisfied that the Bachelor of Engineering with Honours is a registered course, being a course of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students.  The Tribunal therefore finds that r.1.15F(1)(a) is met.

31. Paragraph 1.15F(1)(b) requires that the course or courses relied upon to satisfy the Australian study requirement were completed in a total of at least 16 calendar months.  The applicant’s degree was a full-time degree for 4 calendar years.  The course was therefore completed in a total of at least 16 calendar months.  The Tribunal is therefore satisfied that r.1.15(1)(b) is met.

32. Evidence provided indicates that the duration of the course was at least 92 weeks and therefore at least 2 academic years study and that all courses were completed in English.  The Tribunal is satisfied that the applicant meets the requirements of rr.1.15F(1)(c) and 1.15F(1)(d).

33. Based on the Department’s records, the applicant was the holder of a Subclass 573 visa until after the completion of her studies and therefore was the holder of a visa authorising her to study whilst undertaking the relevant qualifications.  The Tribunal therefore finds that r.1.15F(1)(e) is met.

34. As paragraphs (a) to (e) of r.1.15F(1) have been met, the Tribunal is satisfied that the applicant has satisfied the Australian study requirement.

35. To satisfy cl.485.231(3) the applicant must show she satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made, that is 14 March 2019.

36. Based on the evidence before it, the Tribunal is satisfied that the applicant completed her studies on 7 December 2018 and therefore within the period of six months ending immediately before the day of the visa application.

37. 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.

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

39. 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

40. 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.

    Michelle East
    Member