Sun (Migration)

[2022] AATA 1400

Sun (Migration) [2022] AATA 1400 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaoqing Sun

REPRESENTATIVE:  Mr Yu Zhang (MARN: 1790023)

CASE NUMBER:  2110824

HOME AFFAIRS REFERENCE(S):          BCC2021/193272

MEMBER:Nicola Findson

DATE:10 May 2022

PLACE OF DECISION:  Perth

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 10 May 2022 at 6:04pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – accountant – inadvertent application for graduate work stream – no application for relevant skills assessment – substantial compliance with application for post-study work stream – Australian study requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F(1), 1.15I, 2.26B, Schedule 2, cl 485.231

CASE
Araque (Migration) [2018] AATA 58

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 4 August 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 2 February 2021. Visa Class VC contains Subclass 485. 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, because the delegate was not satisfied that the applicant had applied for the required skills assessment with the appropriate authority prior to the lodgement of her visa application.

4. The applicant appeared before the Tribunal on 4 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In this case, the applicant specified the Graduate Work stream when making her visa application. 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.

8. During the review process, the Tribunal received a submission from the applicant’s representative.  It is submitted, among other things, that a mistake was made by the applicant when she lodged her application.  The submission explains that the applicant inadvertently applied for her visa in the Graduate Work stream rather than the Post-Study Work stream.  It is submitted that the applicant met the criteria for the Post-Study Work stream at the time she applied for the visa.  The submission also notes the authority of Araque (Migration) [2018] AATA 58 (18 January 2018), in which case the Tribunal concluded that even though the applicant did not meet the requirements of cl.485.223, the visa application was able to be assessed against the Post-Study Work stream given there was substantial compliance with the visa application form.

9. The issues to be determined by the Tribunal in the present case are: whether the applicant meets the requirements of cl.485.223 and 485.224; if not, whether the visa application can be assessed against the Post-Study Work stream criteria; and if so, whether the criteria for the Post-Study Work stream are met.

   Had the applicant applied for a relevant skills assessment?

10. 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’.

11. ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument IMMI 19/051.

12. On the evidence before the Tribunal, the applicant nominated the occupation of Accountant (General) (ANZSCO 221111) which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is CPAA, CAANZ or IPA.  

13. In her visa application, in response to the question “have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?” the applicant responded ‘no’.

14. At the hearing, the Tribunal explained to the applicant the requirements of cl.485.223, noting that her visa application was not accompanied by evidence that she had applied for an assessment of her skills for the nominated ‘skilled occupation’ by the relevant assessing authority. The applicant acknowledged that she now understood the specific requirements for the visa in the Graduate Work stream. The applicant reiterated to the Tribunal that she had made a mistake when lodging the application in electing the Graduate Work stream.  She explained that she was unaware there were two streams for the visa.  She told the Tribunal that she first became aware about the other stream when she received her refusal decision.  She told the Tribunal that she was eligible for the Post-Study Work stream and should have applied in that stream.

15. As the visa application when lodged, 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.

    Can the visa application be assessed against the criteria for the Post-Study Work stream?

16. The Tribunal has considered the evidence before it, including the oral evidence of the applicant as to the circumstances in which the Graduate Work stream came to be selected in her visa application.  The Tribunal has considered the applicant’s evidence that she was unaware there were two streams, and that she mistakenly applied for the visa in the Graduate Work stream, rather than the Post-Study Work stream for which she was eligible to apply.  On the basis of this evidence, which the Tribunal accepts as credible, the Tribunal is satisfied and finds that the applicant did intend to apply for the visa in the Post-Study Work stream, and that her failure to do so was an error on her part.

17. The Tribunal is also satisfied that it is able to assess this application under the Post-Study Work Stream rather than the selected Graduate Work Stream, in line 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. 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.

    Does the applicant hold a specified qualification?

20. 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 Master of Professional Accounting (by coursework) degree from Monash University, which is a qualification specified in that instrument.

21. Accordingly, cl.485.231(1) is met.

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

22. 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 which specifies for the purposes of cl.485.231(2) that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offer courses at degree level and above.

23. The Tribunal has confirmed that Monash University is a CRICOS registered provider. The Tribunal finds that Monash University offers courses at degree level and above.

24. In this case, the Tribunal is satisfied that the applicant’s qualification was conferred or awarded by an educational institution specified in the relevant 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:

    a.that are registered courses,

    b.that were completed in a total of at least 16 calendar months,

    c.that were completed as a result of a total of at least 2 academic years study,

    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.

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. The applicant has provided the following evidence.  In her visa application lodged on 2 February 2021, the applicant stated that she completed a Master of Professional Accounting degree at Monash University (CRICOS code 082336G) in the period 2 March 2019 to 17 December 2020. 

30. The applicant supplied documents from Monash University with her application, including a ‘Proof of Qualification’ statement issued on 4 January 2021, as well as a statement of Academic Record, which indicate the applicant completed all academic requirements of the Master of Professional Accounting degree and qualified on 17 December 2020.  The documents before the Tribunal also confirm the following:

    a.    The course duration was 2 academic years (full time);

    b.    All instruction was conducted in English;

    c.     The course was completed in the period March 2019 to 17 December 2020.

31. The applicant’s movement records confirm that she held a student visa while studying and was therefore authorised to study.

32. Having regard to all of the evidence the Tribunal is satisfied that the applicant completed a Master of Professional Accounting degree on 17 December 2020, in the 6 months immediately before the visa application was made.  The Tribunal is also satisfied that the course was registered, of 2 academic years’ (full time) duration, and conducted in English.

33. On this basis, the Tribunal is satisfied the applicant met the Australian study requirement in the 6 months immediately before the day the visa application was made.  Accordingly, cl.485.231(3) is met.

34. 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

35. 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.

    Nicola Findson
    Member