Rajput (Migration)

[2019] AATA 2799

Rajput (Migration) [2019] AATA 2799 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kuldeepsinh Dharmendrasinh Rajput
Mrs Ayushi Zala

CASE NUMBER:  1836217

DIBP REFERENCE(S):  BCC2018/3528881

MEMBER:Mary Sheargold

DATE:7 June 2019

PLACE OF DECISION:  Melbourne

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(1) of Schedule 2 to the Regulations.

Statement made on 07 June 2019 at 4:28pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – Computer Network and Systems Engineer – not accompanied by evidence of an application for skills assessment – applied under the wrong stream – Post-Study Work Stream – Australian study requirement – Master of Information Technology (Computer Networking) – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 7 December 2018 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 17 September 2018. 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 visa because the first named applicant (the applicant) did not satisfy cl.485.223 of Schedule 2 to the Regulations because he had not applied for a skills assessment with the appropriate authority prior to making his Subclass 485 visa application.

4. The applicants appeared before the Tribunal on 7 June 2019 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent, but the representative did not attend the hearing.

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 is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.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. The issue in the present case is whether the applicant meets those requirements.

   Had the applicant applied for a relevant skills assessment?

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. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). The relevant instrument is Legislative Instrument IMMI 17/072.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Computer Network and Systems Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authorities specified is the Australian Computer Society.

11. The applicant responded ‘No’ to the question, ‘Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?’ on his online application form. 

12. At the hearing, the applicant gave oral evidence that he made his own application for the visa, without the assistance of a migration agent.  The applicant told the Tribunal that he had been in a panic and had misinterpreted the options for which stream to choose when making his online visa application.  The applicant gave evidence that he genuinely did not intend to apply for the Graduate Stream.

13. The applicant gave evidence that he had not applied for a skills assessment prior to lodging his visa application because he did not think he needed one for his nominated occupation, but that he knew the Australian Computer Society provided skills assessments for information technology related occupations, so he listed Australian Computer Society as the assessing authority in his online application form.

14. 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.

    Did the applicant intend to apply under the Post-Study Work Stream?

15. The online visa application form completed by the applicant clearly states:

    To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application.  If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

16. As set out above, the applicant answered ‘No’ to the question, ‘Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?’ on his online application form.  This fact, coupled with the applicant’s oral evidence set out in paragraphs 12 and 13 above, persuades the Tribunal that the applicant did not 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 has no such requirement for a skills assessment, and this was the applicant’s evidence at the hearing.

17. After reviewing the Schedule 1 criteria, set out in Item 1229 of the Regulations, and being satisfied that the applicant held a Student Temporary (Class TU) visa that was granted on the basis of an application made on or after 5 November 2011 and that it was the first Student Temporary (Class TU) visa the applicant held, the Tribunal is satisfied that the applicant substantially complied with the visa application form for the Post-Study Work Stream.  The applicant told the Tribunal he was granted a Subclass 573 visa in 2016, and the Tribunal has verified this against Departmental records.

18. The Post-Study Work Stream requires that the applicant holds a qualification of a kind specified by the Minister in an instrument in writing for this subclause: cl.485.231(1).  The relevant instrument is IMMI 13/013.

19. Relevantly, this instrument specifies that for the purposes of subclause 485.231(1), the following qualifications that are a result of study undertaken at Australian Qualifications Framework level seven or higher are:

    a.Bachelor Degree;

    b.Bachelor (Honours) Degree;

    c.Masters by Coursework Degree;

    d.Masters by Research Degree;

    e.Masters (Extended) Degree; and/or

    f.Doctoral Degree.

20. The applicant gave oral evidence at the hearing that he completed a Master of Information Technology (Computer Networking) degree at Charles Sturt University on 17 September 2018.  The Tribunal has evidence of a Letter of Completion for the applicant from Charles Sturt University stating that he has satisfied the requirements for the degree of Master of Information Technology (Computer Networking) on 17 September 2018.

21. On this basis, the Tribunal finds that the applicant meets the requirements of cl.485.231(1) 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, including in relation to the secondary applicant.

    DECISION

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

    ·cl.485.231(1) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member