1318274 (Migration)

[2015] AATA 3449

1318274 (Migration) [2015] AATA 3449 (6 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chew King Chieng

CASE NUMBER:  1318274

DIBP REFERENCE(S):                   BCC2009/238472

MEMBER:Karen Synon

DATE:6 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (class VC) visa.

Statement made on 06 October 2015 at 1:47pm

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 26 June 2009 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 visa on 26 June 2009. At the time the visa application was lodged, Class VC contained two subclasses, 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 487 (Skilled – Regional Sponsored), the criteria for which are set out in Part 487 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 to grant the visa because the applicant did not satisfy cl.487.212 of Schedule 2 to the Regulations because she did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made.

4. The applicant appeared before the Tribunal on 20 May 2014 to give evidence and present arguments.  The applicant’s husband was present throughout the hearing.  He did not give evidence.

5. The applicant was represented in relation to the review by her registered migration agent who was present throughout the hearing.  

6. The Tribunal explained to the applicant that she needs to satisfy the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made and that only courses that result in the award of a degree, diploma or trade qualifications can be used to satisfy the Australian study requirement and that they must each be closely related to her nominated skilled occupation.   It noted that despite her representative’s submission that the Tribunal is the appropriate authority to remedy what had been a breach of procedural fairness and natural justice and could make a finding that she satisfied the ‘Australian Study Requirement’; that it was only permitted to make a lawful decision and apply the relevant Regulations at the time of application.

7. The applicant said that, according to her understanding, the visa application was lodged in June 2009 and that she nominated the skilled occupation of ‘Marketing Specialist’.  The applicant detailed her Australian study completed before 26 June 2009 as:

   ·A one year ELICOS course commenced on 2 May 2004 at the University of South Australia;

   ·A Diploma of Business commenced in January 2005 undertaken as a pathway to her Bachelor’s degree

   ·A Bachelor of Business in International Business completed on 21 July 2008 at the University of South Australia.

8. The applicant explained the circumstances that led to her visa not being lodged within 6 months of completing her study stating that she had appointed her representative to submit the application and provided all the supporting documents within the time frame.  The Tribunal explained that despite these circumstances the only issue before it was whether she could satisfy the ‘Australian study requirement’ in the period of 6 months immediately before the day on which her application was made.  The Tribunal noted that the department’s decision record, a copy of which she provided, records that she lodged her visa application on 26 June 2009 and that she just given evidence that she completed her Bachelor of Business in International Business on 21 July 2008.  The applicant confirmed there was no Australian study in the intervening period.  The applicant reiterated that she had submitted all of the necessary documentation within the six-month period.  The Tribunal noted that the issue was not whether she had all the required documentation within 6 month period but whether her visa applicant had been lodged.  The applicant said she appointed her agent to submit the documents for her and he understood that they had to be submitted before 20 January; he had plenty of time in which to submit the application.  She said she believes he submitted it.  Asked what she based this belief the applicant said that she went to see him in December 2008 and they discussed the 487 visa and her sister, who is an Australian resident and who lives in South Australia is eligible to sponsor her.  The Tribunal noted that she appeared to have taken no responsibility to ensure the application was lodged.  She said he had previously lodged an application promptly so she trusted him.  The applicant said she feels she did everything right.

9. The applicant’s representative submitted that there had been a huge breakdown in communication which had caused a lot of grief.  He said he thought the Tribunal had an element of discretion because the application was not made as instructed and this was a fundamental technicality.  He said the applicant has been in Australia for 10 years and asking her to leave would be a terrible mistake.  He believes that the applicant’s former migration agent’s oversight was negligent and a technical fraud.  The Tribunal noted that balancing this was the applicant’s apparent lack of personal responsibility in ensuring her visa application was lodged within the required time.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets cl.487.212.

12. Clause 487.212 requires that at the time of application the applicant meets one of several alternative criteria specified in subclause (1).  These depend on which of the alternative requirements in item 1229 of Schedule 1 to the Regulations the applicant satisfied in order to make a valid visa application.  In this case, as the applicant met item 1229(4), the relevant alternative in this case is cl.487.212(2) which requires that the applicant satisfied the Australian study requirement in r.1.15F in the 6 months ending immediately before the visa application date; and that each degree, diploma or trade qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation.

13. The applicant has nominated the occupation of ‘Marketing Specialist’.

14. Prior to the hearing the Tribunal received a submission and supporting documentation that relevantly and in summary, acknowledged “that the Australian study requirement was not met in the application submitted” and that she completed a Bachelor in International Business at the University of South Australia on 21 July 2008.  The applicant applied for a subclass 485 visa on 31 August 2008 and on 7 January 2009 instructed her (former) migration agent to lodge a 489 visa application by 20 January 2009.  She paid for this.  It was contended that her instructions were not acted upon and that the applicant “did all she could do to have the visa application well in time”.  The (former) migration agent lodged the application 5 months later.  Her (former) migration agent “unreservedly accepted his culpability and made a full refund of visa fees paid to DIBP and his professional fees”.  The applicant’s (former) migration agent had “accepted her instructions to lodge the application well before the critical date and was area of the consequences otherwise”.  Her visa was refused on 19 November 2013; the same year the applicant had married her husband, a citizen of the USA and completed her Masters in Professional Accounting.

15. The submission asserts that “there are questions of procedural fairness and natural justice in this context” and “strong grounds for applying the principles of procedural fairness and natural justice” with the Tribunal “being the appropriate authority to provide a remedy in this situation because it is not bound by technicalities, legal forms, or rules of evidence and must act according to substantial justice and the merits of the case”.  The Tribunal was urged “to deem that the applicant has satisfied the ‘Australian Study Requirement’ and remit the visa application”.

16. Accompanying the submission were the following documents:

    ·An untitled document but with the header ‘PNG Consultancy & Associates’.  “Copy of Agreement” is handwritten on this document.  It includes the applicant’s name, address and indicates that the applicant was applying for a “permanent” 487 visa although this is crossed out and replaced by ‘886’.  It is signed by her former migration agent Philip Ng and the applicant.  The fees were identified as:  $2,105 for the visa application and $1,800 for the agent’s fees.  It records that the applicant paid $200 on 7 January 2009.

    ·A copy of a bank cheque for $2,105 made out to the Department of immigration and Citizenship and dated 7 January 2009. It was provided as evidence that the visa application fee for the subclass 487 was paid on 7 January 2009.

    ·A series of emails between the applicant and her former migration agent, Philip Ng, regarding the refund of the applicant’s fees by Philip Ng.

17. After the hearing the following additional documents were provided:

    ·A copy of the Marriage Certificate of the applicant and Mr John Michaels at New Haven, Connecticut on 8 September 2013.

    ·A letter from Joanne Chou, State Manager, MSY Technology Pty Ltd dated 1 June 2011 detailing and commending the applicant’s employment with the company for 2 years prior to the date of the letter.

    ·The results of an IELTS test the applicant sat on 17 January 2009 in which she achieved the following results: Listening 6.5; Reading 7.0; Writing 7.5; and Speaking 7.5.  Her Overall Band Score result is 7.0;

    ·An Official Transcript of Results from the University of South Australia in relation to the applicant’s successful completion of a Master of Professional Accounting which was conferred on 15 August 2008; and

    ·A copy of the applicant’s successful skills assessment for the occupation of ‘Marketing Specialist’ issued by VETASSESS on 24 September 2008.

    ·A submission from the applicant’s representative in support of a recommendation for Ministerial Intervention.

18. The applicant confirmed at the hearing that she completed her Bachelor of Business (International Commerce) on 21 July 2008.  The visa application was lodged on 26 June 2009. 

19. As the applicant’s Bachelor of Business was not completed in the six months immediately before the applicant lodged her subclass 487 visa application on 26 June 2009, the Tribunal finds that the applicant has not satisfied the 2 year study requirement in the 6 months immediately before lodging her visa application.  The Tribunal records that the applicant’s submission provided to the Tribunal concedes that the Australian study requirement was not met in the application submitted.  Therefore, the applicant does not meet the requirements of cl.487.212(2).

20. In making this decision the Tribunal has considered the oral submission made by the applicant’s representative at the hearing that her former migration agent had committed a “technical fraud” in not making the visa application on behalf of the applicant when he was instructed to do so.  The Tribunal does not accept that a fraud was committed on either the applicant or the department in this case noting that an agency agreement existed between the applicant and her former migration agent and that the applicant had authorised the lodging of the application.  While the Tribunal accepts that the migration agent either committed an oversight or was negligent in not lodging the application within the time period that would have enabled the applicant to meet the Australian study requirement, it is not satisfied that there is sufficient evidence before the Tribunal that this oversight and/or negligence constitutes any form of fraud.

    Recommendation for Ministerial Intervention

21. While the applicant is not eligible for a grant of a Skilled (Provisional) (Class VC) Subclass 487 (Skilled – Regional Sponsored) visa for the preceding reasons, the Tribunal, having regard to the circumstances of the applicant’s case and in particular those which are referred to below, and having considered the ministerial guidelines relating to the Minister's discretionary power under s.351 set out in PAM3 'Minister's guidelines on ministerial powers', considers this case should be referred to the Department to be brought to the Minister's attention. These factors are:

    ·The Tribunal is satisfied that the applicant, on 7 January 2009, instructed a registered migration agent to lodge a 487 visa on her behalf.  In doing so she advised her migration agent that this had to be lodged by 20 January 2009;

    ·She provided a bank cheque to her registered migration agent on 7 January 2009 comprising the full visa application fee;

    ·The migration agent did not lodge the visa application by 20 January 2009 as instructed;

    ·Her former migration agent has conceded his negligence and refunded the fees paid by the applicant;

    ·The applicant has been in Australia for over 10 years and has completed both a Bachelor of Business and a Masters of Professional Accounting;

    ·She is well integrated into Australian society and is being sponsored by her sister; an Australian citizen;

    ·The applicant’s English proficiency is high and she was able to communicate effectively with the Tribunal.  She also speaks Mandarin and Malay; and

    ·The visa application was refused on a technical requirement that the Tribunal, in its review, is unable to remedy; and

    ·The applicant’s period of time studying in Australia, her educational qualifications, skills and English proficiency meet the policy objectives of the skilled migration program.

22. In the view of the Tribunal, these factors may be grounds for Ministerial Intervention and refers the matter to the Department for its consideration under relevant Ministerial guidelines for intervention in the public interest, pursuant to the Minister's non-compellable discretion provided for in section 351 of the Migration Act. However this is a matter entirely at the Minister’s discretion.

    CONCLUSIONS

23. The Tribunal finds that the applicant does not satisfy cl.487.212(2).  There is no evidence that the applicant met subitems 1229(5), (6), or (7) of Schedule 1 to the Regulations.  Therefore the applicant does not satisfy any of the alternative criteria specified in cl.487.212.

24. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 487 visa.

25. The other subclass in Class VC is Subclass 485, which also contains a requirement that the Australian study requirement is met in the period of 6 months ending immediately before the day on which the application was made.  She does not meet cl.485.213(a) for the same reasons as outlined above.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Karen Synon
    Member