Shastri (Migration)

[2018] AATA 5155

Shastri (Migration) [2018] AATA 5155 (21 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Udita Shastri

CASE NUMBER:  1818496

DIBP REFERENCE(S):  BCC2018/1168860

MEMBER:Sheridan Lee

DATE:21 December 2018

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(1) of Schedule 2 to the Regulations.

Statement made on 21 December 2018 at 10:14am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – application for skills assessment prior to the visa application – occupation of Accountant – Post-Study Work Stream – correction of error selecting required stream – temporary withdrawal of application – specified qualification type – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 1, Schedule 2, cl 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 12 June 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 12 March 2018 and selected the Graduate Work Stream. 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).

3. The delegate refused the visa because the applicant did not satisfy cl.485.223 of Schedule 2 to the Regulations because the applicant did not supply evidence that she had applied for an assessment of her skills for her nominated occupation.

4. The applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Had the applicant applied for a relevant skills assessment?

6. The criteria for the Graduate Work stream 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.

7. 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’.

8. On the evidence before the Tribunal, the applicant nominated the occupation of Accountant (General) which is a specified skilled occupation. For that occupation, there are several relevant assessing authorities that are specified, being: Certified Practising Accountants Australia; Chartered Accountants Australia and New Zealand; and the Institute of Public Accountants.

9. However, on the online application form the applicant declared ‘no’ to the question ‘Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?’

10. At the hearing, the applicant acknowledged that she did not apply for a skills check from a relevant assessing authority prior to submitting the visa application. She explained that she had not applied for the skills check as she had intended to apply for the Subclass 485 visa in the Post-Study Work Stream, for which she is also eligible to apply. The skills assessment is not a necessary criterion of the Post-Study Work stream.

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

11. The applicant submitted an application for a Subclass 485 visa in the Graduate Work Stream, however alleges that she intended to apply in the Post-Study Work stream. She gave evidence that she realised her error almost immediately. She called the Department at 8:30am the following morning to seek advice on how to rectify the error and ensure that her visa application was processed in the correct stream. The applicant has supplied phone records from her telecommunications provider and call records requested from the Department through Freedom of Information.

12. The records confirm that she made numerous attempts to rectify the error and received conflicting advice from departmental officers through the process.

13. Following advice received on 13 March 2018, the applicant completed a Form 1023 – Notification of incorrect answers and submitted it to the Department along with a cover letter setting out that she had selected the Graduate Work stream in error. The Tribunal has a copy of both the Form 1023 and the cover letter.

14. The applicant was then advised by the Department in writing that she cannot change streams. The correspondence recommends that she withdraw her first application and submit a second in the correct stream. Following this advice, the applicant submitted an online withdrawal. However, as she had an electronic application on foot, she was unable to commence another until such time as the withdrawal was processed. Running short on time, she posted the second application to the Department. The Tribunal has before it tracking information for the second application, confirming that it was sent to the SA Temporary Graduate Processing Centre.

15. The applicant’s second visa application was returned to sender by the Department, as she listed the street address (Department of Home Affairs, 4^th Floor, 70 Franklin Street, Adelaide SA 5000) rather than the GPO Box (Department of Home Affairs, GPO Box 2399, Adelaide SA 5001). She was advised in writing by a departmental officer on 30 May 2018 that the envelope was not accepted as the Department will only accept delivery via courier to the street address. Following the failed second application, the applicant was out of time to lodge a Subclass 485 visa application within 6 months of completing the relevant study. On the advice of a departmental officer, she requested that the Department not process the withdrawal of the first application in the Graduate Work Stream and consider assessing her against the intended stream.

16. The visa was then refused on the basis that the applicant did not submit evidence of the necessary skills assessment.

17. On the evidence, it is clear that the applicant intended to apply in the Post-Study Work stream and it’s difficult to see how she could have done anything further to rectify the error. In the circumstances, the Tribunal is of the view that the applicant’s visa application should be assessed under the Post-Study Work Stream rather than the selected Graduate Work Stream. This approach is consistent with a consent remittal of the Federal Circuit Court in BRG368/2017.

18. After reviewing the Schedule 1 criteria 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 visa application form for the Post-Study Work Stream.

19. 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.

20. This instrument relevantly specifies, for the purpose of subclause 485.231(1), the following qualifications that are a result of study undertaken at Australian Qualifications Framework level seven or higher:

    ·Bachelor Degree;

    ·Bachelor (Honours) Degree;

    ·Masters by Coursework Degree;

    ·Masters by Research Degree;

    ·Masters (Extended) Degree and/or;

    ·Doctoral Degree

21. Evidence before the Tribunal is that the applicant successfully completed a Masters of Professional Accounting at RMIT. 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.

22. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.231(1) of Schedule 2 to the Regulations.

    DECISION

23. 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(1) ) of Schedule 2 to the Regulations.

    Sheridan Lee
    Member