Seenundun (Migration)

[2024] AATA 957

Seenundun (Migration) [2024] AATA 957 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Preeksha Seenundun
Mr Dhiren Govinden

CASE NUMBER:  2205892

HOME AFFAIRS REFERENCE(S):          BCC2021/1156182

MEMBER:P. Maishman

DATE:22 April 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 22 April 2024 at 5:01pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – specified qualification – skills assessment – vocational qualification – Childcare Centre Manager – referral for Ministerial Intervention – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 485.223, 485.231-485.325, 485.311

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 8 April 2022 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 28 May 2021. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include the criteria in Subdivision 485.23.

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl 485.231(1) of Schedule 2 to the Regulations because she does not hold a qualification specified by the Minister.

4. The applicants appeared before the Tribunal on 12 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dhiren Govinden.  

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant told the Tribunal she applied for the visa without assistance and selected the incorrect stream and should have chosen the Graduate Work stream. By the time she became aware of her error, the time within which she could make a valid application had expired.

7. The Tribunal notes the application was not accompanied by evidence the applicant had applied for an assessment of the applicant’s skills for her nominated occupation by a relevant assessing authority. The applicant told the Tribunal she applied to the assessing authority in December, after lodging her visa application in May 2021.

8. Therefore the applicant would not satisfy the criteria in cl 485.223 if her application was considered in the alternative Graduate Work stream.

9. 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

10. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

    Does cl 485.231 apply to the applicant?

11. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A).

12. There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made.

13. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 applies.

    Does the applicant hold a specified qualification?

14. Clause 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 LIN 23/023 and the specified qualifications are:

    a.bachelor degree;

    b.bachelor (honours) degree;

    c.masters by coursework degree;

    d.masters by research degree;

    e.masters (extended) degree; or

    f.doctoral degree.

15. In this case, the applicant holds a Diploma in Early Childhood Education and Care and an Advanced Diploma of Business which are not qualifications specified in that instrument.

16. Therefore the applicant does not satisfy cl 485.231(1).

17. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231, 485.232 or 485.233. Therefore the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

18. The second-named applicant applied for the visa on the basis that he is a member of the family unit of a person who is the holder of a subclass 485 visa. Accordingly his application does not meet the requirements of cl 485.311.   

19. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

20. The applicant and her husband have been in Australia for about eight years and have established community ties. The applicant told the Tribunal she works as Manager at a Childcare Centre. Her employer frequently attempts to get new workers but it is difficult. If she is unable to work, the Childcare provider may have difficulty providing a service to her clients which may cause hardship and difficulties for Australian citizens.

21. The Tribunal is of the opinion there are economic benefits that would result from the applicant being permitted to remain in Australia.

22. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    P. Maishman
    Member