PRAJAPATI (Migration)

[2021] AATA 2543

PRAJAPATI (Migration) [2021] AATA 2543 (9 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Ravinaben Nandubhai PRAJAPATI
Mr Akshay Atulbhai Rami

CASE NUMBER:  1932559

HOME AFFAIRS REFERENCE(S):          BCC2019/4264755

MEMBER:Michelle East

DATE:9 July 2021

PLACE OF DECISION:  Perth

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 Regulations

Statement made on 09 July 2021 at 3:16pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – no application for skills assessment before visa application made – nomination for one stream – no prohibition against being considered in either stream or changing stream after application – wording and process confusing – application substantially compliant – assessed against post-study work stream – decision made on papers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 1, item 1229(3)(j), (k), (l), Schedule 2, cls 485.223, 485.231

CASE
Singh v Minister for Immigration [2020] FCA 774

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 28 October 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 August 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 visas because the first named applicant (the applicant) did not satisfy cl.485.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had applied for a skills assessment prior to lodging her visa application.

4. The Tribunal was in receipt of further submissions and evidence and was able to make a decision on the papers without the need to proceed to a hearing.

5. The applicant was represented in relation to the review by her registered migration agent. The Tribunal thanks the agent for his comprehensive and helpful submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. 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).

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

12. The Tribunal notes that the terms of Schedule 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.

13. In a submission provided to the Tribunal on 19 May 2021, the applicant via her representative noted that she had completed and graduated from the University of Adelaide, South Australia with a Bachelor of Architectural Design.  She went on further to say:

    I had an honest belief at the time of application that the appropriate stream I should choose is the ‘Graduate Work Stream’ as I had graduated.  Looking at the face value of the phrase ‘Graduate Work Stream’ inadvertently led me to choose the wrong stream may be due to lack of appropriate legal knowledge and experience or may be because of not seeking expert legal advice.  As I did not actually intend to apply for a Subclass 485 visa under the Graduate Work stream, but rather always intended to apply under the Post-Study Work Stream which had no requirement for a skills assessment led me to answer ‘No’ to the question ‘Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?’.  At the time of visa application, I met all the requirements for the Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485 visa) as I had completed a Bachelor of Architectural Design degree from the University of Adelaide, South Australia (29 February 2016 to 16 July 2019 – 3.5 years in total). After meeting all the validity and eligibility requirements as stated under Schedule 1 and 2 of the Migration Act 1958 (Cth) I instead of applying for the Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa mistakenly applied for the Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa. (sic)

14. The representative also referred to several authorities where in similar circumstances to those of the applicant, the Tribunal and the Federal Circuit Court have found in favour of an applicant.

15. The Tribunal has carefully considered the authorities involving visa applicants who have applied for the wrong stream, that is, they have applied for a Subclass 485 (Temporary Graduate) visa as opposed to one in the Post-Study Work stream.

16. The Tribunal agrees with the representative’s submissions that some of the authorities do support the contention that a visa application can be assessed against a different stream if there is substantial compliance with the visa application form.  When considering the reasons for remittal endorsed by the Court in BRG368/2017 and SYG3039/2016 the Tribunal appears to be able to have regard to the applicant’s claimed intention to have applied in the alternate stream and therefore it is open to consider an applicant who has applied for the Graduate Work stream against the Post-Study Work stream.  Both these matters were remitted by consent prior to the decision of His Honour, Rangiah J in Singh v Minister for Immigration & Anor [2020] FCA 774. In that matter, His Honour concluded that the applicant could not have been granted a visa in the Post-Study Work stream because the application had been made in the Graduate Work stream. This was in relation to the futility of an appeal regarding a possible procedural error in the Tribunal when his application was dismissed for failure to attend a hearing. The applicant claimed before the Federal Circuit Court (FCC) that he had become confused and intended to apply for the Post-Study Work stream. His Honour did not have regard to the applicant’s claimed intention to apply for his Subclass 485 visa in the alternate stream. Whilst the judge may have regarded it as irrelevant, the Tribunal notes that the applicant had not made this claim prior to his appeal in the FCC.

17. The Tribunal therefore considers it is open to it to consider an applicant who has selected the Graduate Work stream against the Post-Study Work stream if it is satisfied on the evidence that the application made was in fact an application for a Subclass 485 visa in the Post-Study Work stream.  This is a finding of fact to be made by the Tribunal.

18. Having carefully considered the submissions of the applicant, the Tribunal is satisfied that she genuinely did not understand that she was applying for the visa in the incorrect stream.  This is not an uncommon submission and the Tribunal has significant sympathy for visa applicants in this situation.  The process and wording are confusing especially when language difficulties are factored in.  For obvious reasons, many visa applicants do not have English as their first language and in this particular visa class they are often highly qualified graduates.  Therefore, whilst their English is obviously more than sufficient for the purposes of tertiary study, nuances are often missed when it is your second language.

19. The Tribunal therefore 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 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 the University of Adelaide, 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 Tribunal demonstrates the applicant undertook a Bachelor of Architectural Design from 29 February 2016 to 16 July 2019.  This constitutes a ‘degree’ as defined in r.2.26AC(6).

30. The Tribunal is satisfied that the Bachelor of Commerce 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 3.5 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 student 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 that she satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made, that is 27 August 2019.

36. Based on the evidence before it, the Tribunal is satisfied that the applicant completed her studies 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