Njuguna (Migration)

[2018] AATA 551

Njuguna (Migration) [2018] AATA 551 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lilian Bosibori Njuguna
Master Sseko Kinaro Waswani

CASE NUMBER:  1710993

DIBP REFERENCE(S):  BCC2017/1002776

MEMBER:Christopher Smolicz

DATE:14 February 2018

PLACE OF DECISION:  Adelaide

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 criteria for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Migration Regulations 1994.

Statement made on 14 February 2018 at 11:14am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Graduate Work) – Application for skills assessment for the skilled occupation – Australian Association of Social Workers – Post-Study Work Stream – Australian study requirement – Specified qualification

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 485.223, 485.224, 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 Immigration on 5 May 2017 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 14 March 2017. 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 (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 visas because the first named applicant (the applicant) did not satisfy cl.485.223

4. The applicants appeared before the Tribunal on 14 February 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies the primary criteria for a Subclass 485 visa. From 23 March 2013 the visa was restructured to create two alternative visa ‘streams’ upon which the visa could be granted: 

   ·     the Graduate Work stream, which reflects the previous criteria for the grant of a Subclass 485 visa;  and

   ·     the Post-Study Work stream, a new stream that does not require the applicant to have particular skills. 

7. The applicant lodged the visa application online on 14 March 2017 and indicated that she is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and cl.485.224 of Schedule 2 to the Regulations.

8. 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’.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Social Worker (ANZSCO 272511) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Association of Social Workers.

10. The Tribunal has had regard to the application form located on the Department’s file and finds that the applicant answered that she had not applied to a relevant assessing authority for a skills assessment for her nominated skills.

11. 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.

12. The applicant concedes that she did not apply for a skills assessment at the time she lodged the application. The applicant submitted that she did not have migration assistance at the time. She was not aware that there were two different streams when she applied for the subclass 485 visa. She applied online and applied for the Graduate Work stream. She was under the impression that she did not require a skills assessment and should have applied for the Post-Study Work Stream.

13. The Tribunal found the applicant to be a credible witness and has considered her application against the Post-Study Work stream, which a new stream that does not require the applicant to have particular skills.

14. The evidence before the Tribunal indicates that the applicant did meet the requirement for the post-study stream at the time of application.

15. The Tribunal finds that the applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate (Post-Study Work) stream which includes cl.485.231 of Schedule 2 to the Regulations.

16. The ‘Post-Study Work stream’ is for graduates who studied at eligible educational institutions and at a specified academic level.  Unlike the ‘Graduate Work stream’, it does not require the applicant to have particular skills or a suitable skills assessment.  The criteria for the Post-Study Work stream are set out in cl.485.23 as follows:

    ·     specified qualification – the applicant holds a qualification of a kind specified in a relevant written instrument. 

    ·     specified institution – each qualification was conferred or awarded by an educational institution specified in a relevant written instrument. 

17. Australian study requirement – the applicant’s study for the qualification(s) satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made.

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

19. The applicant is 37 years old and is a Kenyan national who first arrived in Australia on 10 February 2015 as the holder of a Subclass 573 student visa. The visa was granted on 3 February 2015. The applicant travelled to Australia with her partner, Nelson Hezekia Waswani, and her son Sseko Kinaro Waswani. The applicant’s partner has returned to Kenya and has withdrawn his application seeking review of the Department’s decision.

20. The Tribunal has assessed the application against legislative instrument IMMI 13/031.

21. The Tribunal finds that the applicant has completed a two year Masters of Social Work (by course work) degree at the University of South Australia. The Tribunal finds that this is a qualification of the kind specified in the applicable written instrument.

22. Subclause 485.231(2) requires that the qualification was conferred or awarded by an educational institution specified in a relevant written instrument (IMMI 13/031).  The Tribunal finds that the University of South Australia is a CRICOS provider.

23. Subclause 485.231(3) requires that the applicant’s study for the qualification satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made. The applicant commenced her study in 2015. The applicant was awarded her Masters of Social Work degree on 2 March 2017.  She lodged her application on 14 March 2017. 

24. The applicant’s movement records indicate that she held a Subclass 573 student visa while she undertook her studies.

25. After considering all the evidence before it the Tribunal is satisfied that the applicant has substantially complied with the visa application for the intended stream: Post-Study Work stream.

26. 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

27. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    · cl.485.231 of Schedule 2 to the Migration Regulations 1994.

    Christopher Smolicz
    Member