Parmar (Migration)

[2020] AATA 4139

Parmar (Migration) [2020] AATA 4139 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vinal Bharat Parmar

CASE NUMBER:  1930533

DIBP REFERENCE(S):  BCC2019/4216269

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 July 2020 at 1:08 pm (VIC time)

DATE OF WRITTEN RECORD:                3 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 03 August 2020 at 4:11pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work Stream – skills assessment – application to be accompanied by prescribed evidence – applicant mistakenly applied for the Graduate Work Stream – intended to apply for the Post-Study Work Stream – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.223

CASES
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 October 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 July 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. You lodged an application for a subclass 485 Temporary Graduate Work Stream visa on 25 August 2019.  Your application was refused on 21 October 2019 because the delegate found you did not meet a criterion in cl.485.223, which is a mandatory requirement for the grant of a visa.

4. Clause 485.223 requires that when an application is made, it is accompanied by evidence that the applicant has applied for an assessment of the applicant’s skills for the nominated skills occupation by a relevant authority.  In your case in completing your application you answered “No” to the question: Have you applied to the relevant assessing authority for assessment of your skills for your nominated occupation?

5. The decision record states that your case was assessed by a case officer of the Department and it was confirmed that you had not applied for the required skills assessment prior to lodging the application.  The delegate therefore found you did not satisfy cl.485.223 and refused your application.

6. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision. 

7. As I have said to you today, there are two streams in the 485 class being the Graduate Work Stream and the Post-Study Work Stream. 

8. Applicants applying under the Graduate Work Stream are required, as stated, to accompany their application by evidence that they have applied for assessment of their skills by a relevant assessing authority.  Whereas under the Post-Study Work Stream, the requirement is that the applicant holds the qualification or qualifications of a kind specified by the Minister in an instrument in writing.  And those requirements are that it is a degree conferred by a recognised university or education provider which has been gained in the six months before the application.

9. You have studied a Master of Architecture at Deakin between August 2017 and July 2019 and you lodged your application on 25 August 2019.  And what you have told the Tribunal is that “I simply made a mistake in applying for a Graduate Work Stream.  What I meant to apply for was the Post-Study Work Stream”, and it ppears that you would satisfy the requirement for the Post-Study Work Stream.

10. However, as I said to you, there is a recent case of Singh, which is reference 2020 FCA 774, specifically paragraphs 66 and 67, which state that: The Tribunal has no power to grant the applicant a subclass 485 visa in the post-study workstream in circumstances where the application was made for a visa in the graduate stream.  An application can only be considered against the stream made in the application and the applicant cannot change streams.

11. Therefore, because you applied under the Graduate Work Stream you were required to accompany your application with evidence that you had applied for an assessment of your skills for your nominated occupation by a relevant authority. 

12. Your application was not accompanied by such evidence and therefore it is the decision of this Tribunal that you do not satisfy clause 485.223, which is a requirement for a grant of a subclass 485 Graduate Work Stream visa.  And it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

13. The Tribunal affirms the decision under review.

    Tim Connellan
    Member