Raj Pratap Singh (Migration)

[2022] AATA 2162

Raj Pratap Singh (Migration) [2022] AATA 2162 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raj Pratap Singh

REPRESENTATIVE:  Mr Shivaram Sesham (MARN: 0105419)

CASE NUMBER:  2117620

HOME AFFAIRS REFERENCE(S):          BCC2020/1154763

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 6:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant applied for the wrong stream for the visa –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, r 1.15, Schedule 2, cls 485.223, 485.231

CASES
Abdul v MIBP [2021] FCCA 349
Kamel (Migration) [2020] AATA 463
Singh v Minister for Immigration & Anor [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 22 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).

2. The applicant applied for the visa on 13 March 2020. 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 visa because the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations, which required that for applicants who applied in the Graduate Work stream, the visa application must be accompanied by evidence that the applicant had applied for a skills assessment for his nominated occupation. The delegate found that the applicant had selected the Graduate Work stream, but had answered ‘no’ to the question in the visa application form asking whether he had applied for a skills assessment.

4. The Tribunal received a review application from the applicant on 26 November 2021. It was accompanied by an authority by which the applicant appointed a registered migration agent, Mr Shivaram Sesham, as his representative and authorised recipient for correspondence.

5. On 14 March 2022, the applicant provided the following material:

   ·positive skills assessment for the applicant from Engineering Australia issued 10 March 2022 for the occupation of Civil Engineer (ANZSCO code 233211);

   ·letter of completion from Swinburne University for the applicant indicating that he completed his Bachelor of Engineering (Civil) (Honours) degree on 4 March 2020;

   ·the applicant’s degree testamur and academic transcript; and

   ·copy of the biodata page of the applicant’s Indian passport.

6. On 8 April 2022, the Tribunal wrote to the applicant via his agent to invite them to a telephone hearing on 4 May 2022. The applicant was requested to respond to indicate whether he would attend the hearing as soon as possible, and to provide any additional material at least 1 week prior to the hearing.

7. 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 also participated by telephone.  No pre-hearing submissions were provided.

8. The applicant told the Tribunal that he had applied to Engineers Australia for a skills assessment prior to making his subclass 485 visa application as it was not clear to him initially from what he had read whether he required a skills assessment or not. He said that it was difficult to talk to anyone who could advise him about what was required, as he made his application during the prolonged COVID19-related lockdown period in Melbourne. Both streams seemed to refer to recent graduates so it was hard to determine which stream was the more appropriate. When he looked at the Engineers Australia website, his degree was listed as not requiring a skills assessment, presumably because the organisation only required people with overseas qualifications to obtain one. That was why he answered ‘no’ in his online subclass 485 visa application. In response to the Tribunal’s query, the applicant said that his then-house mate (who had applied for a skills assessment previously) assisted him with sending a skills assessment application to Engineers Australia sometime in February 2020 by post, but he never heard back from the organisation. He did not follow up with them because he had by then formed the view that he did not require a skills assessment to apply for the subclass 485 visa. The applicant said that he did not have any proof of having applied for a skills assessment prior to making his visa application, as he did not keep copies of the correspondence and it was sent by regular post, not registered post.

9. In response to the Tribunal’s query, the applicant said that he understood that he need proof of his Australian degree, his letter of completion and to meet the health and character requirements. He said that he applied for the subclass 485 visa because he wanted to obtain work experience in his occupation for 2 years in Australia, and he noted that he had worked very hard to complete his Civil Engineering degree with Honours, despite very challenging circumstances, including the COVID19 pandemic and its associated lockdowns in Melbourne (where he was studying) and the death of his father overseas during this period. The applicant said that it was devastating that his visa application had been sabotaged because of a genuine mistake in selecting the stream. He said he was unaware that he had selected the wrong stream until he received the Department refusal decision. This was particularly distressing as other friends were granted subclass 485 visas in the PSW stream after having completed the same course, and he believed he had made his application in the same stream that they had.

10. 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).

11. The applicant reiterated that it was a very stressful time for him, particularly due to the fact that his father had died during the course of his studies, and he had suffered mentally due to this. He noted, nevertheless, that he had made significant efforts to overcome this and obtain good marks in his course, resulting in him being awarded an Honours degree. He said that he desperately wanted to obtain Australian work experience as a Civil Engineer and this was the purpose of his subclass 485 visa application. He told the Tribunal that as the holder of a bridging visa, it was very difficult for him to obtain employment as employers were reluctant to take on employees without a substantive temporary or permanent visa.

12. Following the hearing, the Tribunal received the following additional submissions from the applicant’s agent:

    …

    Written Submissions

    1.       When coming to any final assessment of the response of Mr RAJ PRATAP SINGH. The Tribunal should humbly review the decision on the Merits “Fresh look on the Facts.”

    2.       In Khan v Minister for Immigration and Border Protection [2018] FCAFC 85, the Full Court construed the criterion for the grant of a Skilled (Provisional) Temporary Graduate (Class VC, Subclass 485) visa, prescribed in cl 485.223 of Sch 2 to the Regulations. It was enacted as follows:

    “When the 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”.

    3.       Gowda & Ors V Minister for Immigration & Anor [2016] FCCA 3491. The learned Tribunal should consider the adverse consequences of the visa refusal on the applicant's life.

    4.       Abdul V Minister for Immigration &Anor [2021] FCCA 349

    FACTS

    That while finalizing the final assessment proceedings at the hands of delegate qua RAJ PRATAP SINGH, his application for Graduate Work Visa stands declined on the premise that he had not provided details regards his Skills Assessment Certificate and had responded in negative while replying “NO” to the questionnaire which was phrased as whether you have applied for your skills assessing to any relevant authority at the time of making an application under 485 “Graduate Work Visa” stream.

    It is apparent that the Appellant filled the complete form without availing of any professional services. The omission to state the relevant details on the part of the Appellant was only clerical, and nothing was intended to be hidden. The nominated category for which the Appellant applied was “Civil Engineers”. The assessing authority in such case was Engineers Australia and had duly issued skill assessment of the Appellant vide is certificate dated 10.03.2022.

    It is discernable that the only omission and resultant non-filing of the relevant category had occurred on account of some misunderstanding on the strength of the clauses while relying on regulation 485.223, which mandates that an applicant must furnish details as regards assessment of his skills as per his nominated occupation by the relevant authority. This omission has been duly supplanted. It is thus requested that it would be in the fitness of things to overturn the erroneous decision of the delegate while refusing the Appellant’s application under “Graduate work Visa” as the error, if any, has been rectified.

    Compelling and Compassionate circumstances beyond the applicant's control should be considered. Any adverse decision will negatively impact both mentally and physically on the applicant.

    …

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

14. 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’.

15. 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. While he now has a skills assessment from Engineers Australia, this was issued in 2022, and did not accompany the visa application made on 13 March 2020.

16. The applicant claimed that he had been confused and inadvertently selected the wrong stream in the ‘drop down’ menu when completing the subclass 485 visa application online, and that intended to apply in the ‘Post Study Work’ stream, for which no skills assessment was needed. This was because he understood that he did not require a skills assessment because his Engineering degree had been obtained in Australia. The applicant’s failure to have applied for a skills assessment before making the visa application is significant, as there is no equivalent requirement to cl.485.223 in the Post Work Study stream criteria.

17. 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. 

18. 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).

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. The matter has been considered in other Tribunal decisions besides the one cited by the applicant’s agent, including:

    ·Sansurooah (Migration) [2021] AATA 3135 (28 July 2021) (remit) (this decision also considered the application of Singh)

    ·Prajapati (Migration) [2021] AATA 2543 (9 July 2021) (remit) 9 July 2021

    ·Kamel (Migration) [2020] AATA 463 (7 January 2020) (remit)

27. 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.

1. In this case, the Tribunal gives weight to the fact that:

   ·the applicant has explained 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 as he was confused by the similar terminology;

   ·he did not have a migration agent or lawyer assisting him at that time; and

   ·the applicant completed a Bachelor degree (Honours) in Civil Engineering at Swinburne University prior to making his visa application.

2. 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 (Civil Engineer), 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 explained that he intended to apply in the stream that did not require a skills assessment as he held an Australian qualification and this is what he believed that he had done (that is, applied in the Post Study Work stream) until he received the Department refusal letter.

3. 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.

4. 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 (his initial subclass 573 visa was granted on 21 January 2014).

   Post Study Work stream requirements

5. 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).

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.

7. 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.

8. In this case, the letter of completion dated 13 December 2021 and academic transcript from Swinburne University provided by the applicant indicate that:

   ·he completed a Bachelor of Engineering (Civil) (Honours) degree at Swinburne University on 4 March 2020, having undertaken this course between Semester 1 2017 and 4 March 2020. It is stated that the course was full time and taught in English.

9. 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 13 March 2020. 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.

10. It follows that the applicant meets the requirements of cl 485.231.

11. 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

12. 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