Thapa (Migration)

Thapa (Migration) [2020] AATA 3424 (8 May 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Bishnu Bahadur Thapa
Ms Sirjana Kshetri Thapa

CASE NUMBER:  1811151
DIBP REFERENCE(S):  BCC2018/1074642
MEMBER:Roslyn Smidt
DATE OF DECISION:  8 May 2020
DATE OF CORRIGENDUM   20 August 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
1)Paragraph seven should be replaced with the following paragraph:

The applicant applied for a visa in the Post-Study Work stream. At the hearing he said that he had lodged his application without professional assistance and he now realised that he should have applied for a visa in the Graduate Work Stream.
2)Point (a) in paragraph eight should be replaced with (a) Bachelor Degree.

Roslyn Smidt
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Bishnu Bahadur Thapa
Ms Sirjana Kshetri Thapa
CASE NUMBER:  1811151
HOME AFFAIRS REFERENCE(S):          BCC2018/1074642
MEMBER:Roslyn Smidt
DATE:8 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 8 May 2020 at 3.01 pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – most recent qualification not eligible – most recent eligible qualification completed more than six months before visa application made – applied for wrong stream – would not meet criteria for graduate work stream either – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations (Cth), r 1.15F(1), Schedule 2, cl 485.231
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 April 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 March 2018. 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 (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 cl.485.231
The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the applicant’s Graduate Diploma in Education was not one of the eligible qualifications for the Post Study Work stream, and the Master of Arts obtained prior to the Graduate Diploma was completed more than six months prior to lodging the visa application.
The applicant appeared before the Tribunal on 27 April 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. The issue in the present case is whether the applicant meets those requirements.
The applicant xxx. At the hearing the applicant said that he had completed his application without assistance and had applied for the wrong stream. He said that he now realised he should have applied for the
Does the applicant hold a specified qualification?
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 which specifies that for the purposes of subclause 485.231(1) of the Regulations the following qualifications that are as a result of study undertaken at Australian Qualifications Framework (AQF) level seven or higher:
ssss(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.
In this case, the applicant holds a Graduate Diploma in Education which is not a qualification specified in that instrument. He also holds a Masters of Arts (Applied Linguistics), which is a qualification specified in that instrument.
Accordingly, cl.485.231(1) is met.
Was the applicant’s qualification conferred or awarded by a specified educational institution?
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.
In this case, the applicant’s qualification was conferred or awarded Curtin University which is an educational institution specified in that instrument.
Accordingly, cl.485.231(2) is met.
Does the applicant’s study for the specified qualification meet the Australian study requirement?
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.
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:
·that are registered courses,
·that were completed in a total of at least 16 calendar months,
·that were completed as a result of a total of at least 2 academic years study,
·for which all instruction was conducted in English, and
·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
‘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.
As noted above, the applicant has provided evidence of having completed a Master of Arts (Applied Linguistics on 8 December 2016 and a Graduate Diploma in Education (Secondary Education) on 11 December 2017. Both qualifications were conferred by Curtin University.
In support of his review application the application provided a statement in which he said that he had understood that his qualifications would be acceptable for this visa. He also provided letters of support from Nepali community organisations and correspondence with VETASSESS confirming recognition of his teaching qualification. At the hearing the applicant said that he prepared his application himself and had applied for the wrong stream and asked to be considered against the Graduate Work stream.
With regard to the requirements of the Post Study Work stream of the 485 visa for which the applicant has applied, while his Master of Arts in Applied Linguistics degree appears to meet the requirements set out in r.1.15F(1), it was completed some more that 6 months prior to lodgement of this application. Tribunal finds that the applicant’s study for this specified qualification did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.
While the applicant’s Graduate Diploma in Education (Secondary Education) was completed within the relevant time period, but it is not 485.231(1) requires a qualification of a kind specified by the Minister in IMMI 13/013.
In these circumstances, the Tribunal finds that cl.485.231(3) is not met.
The applicant has asked that his application also be considered against primary criteria for a Subclass 485 visa in the Graduate Work stream. However, even if I accept that it is an appropriate course of action, he does not meet the criteria for this stream
The criteria for the Graduate Work stream include cl.485.222, 485.223 and 485.224 of Schedule 2 to the Regulations. These require that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222), that when the application was made, it was accompanied by evidence that the applicant had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority (485.223) and the skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation (485.224 (1))
In the applicant’s case, he did not nominate a skilled occupation in his visa application and he has not provided evidence that he has applied for or obtained a relevant skills assessment. In these circumstances cl.485.222, 485.223 and 485.224 are not met.
CONCLUSION
On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, and the secondary criteria cannot be met either. As this is the only relevant subclass in this case, the decision under review will be affirmed.
decision
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Roslyn Smidt
Member

[2020] AATA 3424

8 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction