Ali (Migration)

[2024] AATA 227

Ali (Migration) [2024] AATA 227 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zeeshan Ali

CASE NUMBER:  2116728

HOME AFFAIRS REFERENCE(S):          BCC2020/2288068

MEMBER:P. Maishman

DATE:1 February 2024

PLACE OF DECISION:  Perth

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

Statement made on 01 February 2024 at 11:15am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – specified qualification – no letter of completion or academic transcript provided – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), Schedule 2, cl 485.231(1)

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 1 November 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 11 September 2020. 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 cl 485.231, 485.232 and 485.233.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant holds a qualification of a kind specified by the Minister.

4. On 7 December 2023 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 31 January 2024. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. On 15 December 2023 the applicant advised the Tribunal that they wanted to give oral evidence. However, the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. Attempts by Tribunal staff to telephone the applicant at the time of the hearing went unanswered.

6. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file containing the visa application.

9. The applicant gave the Tribunal a copy of the delegates decision record. The delegate notes the applicant did not provide a letter of completion or academic transcripts for his claimed Bachelor of Business qualification obtained from Edith Cowan University to evidence he had completed the course.  

10. 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.

    Does the applicant hold a specified qualification?

11. 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. LIN 23/023 specifies the qualifications to be:

    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.

12. In this case, the applicant claimed to hold:

    • Certificate IV of Business, 8 July 2013 to 5 January 2014
    • Certificate IV of Project Management, 6 January 2014 to 14 April 2014
    • Diploma of Business, 30 May 2014 to 28 November 2014
    • Advance Diploma of Business, 5 January 2015 to 6 July 2015
    • Bachelor of Business, 25 February 2019 to 15 July 2020.

13. On 30 October 202 the delegate requested the applicant in writing to provide information, including:

    Evidence of study

    Provide evidence of your study undertaken in Australia including all transcripts.

    Completion letter Australian qualifications

    Provide completion letter/s from your Australian educational provider showing course commencement date, completion date and study load.

14. The applicant gave the Department no further information in support of his application.

15. The Tribunal invited the applicant in writing on 22 December 2023 to provide written information to support his claim to have obtained qualifications. The Tribunal received no response.

16. The applicant has provided no supporting evidence that he holds a qualification of a kind specified by the Minister.  

17. Accordingly, the Tribunal is not satisfied the applicant holds a qualification which is specified in that instrument.

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

19. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. 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.

    DECISION

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

    P. Maishman
    Member