Bhumrha (Migration)

[2024] AATA 272

Bhumrha (Migration) [2024] AATA 272 (14 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arjundeep Singh Bhumrha

REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)

CASE NUMBER:  2116559

HOME AFFAIRS REFERENCE(S):          BCC2021/367395

MEMBER:Karen McNamara

DATE:14 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2024 at 9:37am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work and Graduate Work Streams – specified qualification – Australian Qualifications Framework level seven or higher – application made in incorrect stream – evidence provided in error – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351, 359, 360
Migration Regulations 1994, Schedule 2, cls 485.223, 485.231-485.235

CASES

Singh v MICMSMA [2020] FCA 774

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 8 November 2021, to refuse to grant Mr Arjundeep Singh Bhumrha (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 March 2021. 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 the criteria in Subdivision 485.23.

3. The decision record provided to the Tribunal by the applicant, records that on 8 November 2021, the delegate refused to grant the visa because the applicant did not satisfy cl.485.231(1) of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant holds a qualification of a kind specified under IMMI 13/013. The applicant submitted evidence of having completed a Diploma of Building and Construction (Building) and Certificate III in Carpentry. The delegate found that the coursework was not at the minimum AQF Level 7 or approved qualifications as stipulated in the legislative instrument: IMMI 13/013.

4. The applicant lodged an application for review with the Tribunal on 12 November 2021. The application was accompanied by a copy of the delegate’s decision and a copy of the applicant’s passport biodata page.

5. On the 13 November 2023, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient/representative), requesting the applicant to provide by 27 November 2023, supporting evidence to address the criteria of cl.485.231 as claimed in his application for a Temporary Graduate (Class VC) Temporary Graduate (Post Study Work) (Subclass 485) visa, lodged with the Department on 11 March 2021.

6. On 27 November 2023, the applicant’s authorised recipient/representative submitted on behalf of the applicant the following:

   ·Submission by representative

   ·Receipt (1 March 2021) AFP National Police Check

   ·Statement of Course Completion (Certificate III in Carpentry) dated 24 January 2020

   ·Record of results (Certificate III in Carpentry)

   ·Certificate of attainment (Certificate III in Carpentry) issued 25 November 2019

   ·Diploma of Computing certificate 3 May 2019

   ·Academic Transcript Diploma of Computing 18 February 2019

   ·Diploma of Building and Construction (Building) dated 9 March 2021

   ·Statement of Completion Diploma of Building and Construction (Building) 9 March 2021

   ·Statement of results (Diploma of Building and Construction (Building) 9 March 2021

   ·Pearson PTE Academic test score report (applicant) 3 March 2021

7. On 4 December 2023, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 21 December 2023. This hearing was subsequently rescheduled to 18 January 2024.

8. On 18 January 2024, Mr Arjundeep Singh Bhumrha appeared before the Tribunal via Microsoft Teams Video, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, 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 video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. The applicant was represented in relation to the review. The representative attended the hearing.

11. The Tribunal notes that plentiful evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

14. The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

    Does cl 485.231 apply to the applicant?

15. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A).

16. There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b).

17. The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and as such cl 485.231 does apply.

    Does the applicant hold a specified qualification?

18. 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 IMMI 13/013.

19. For the purpose of cl.485.231(1) of Schedule 2 of the Regulations, IMMI 13/013 specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework (AQF) level seven or higher

    (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.

20. In this case, the applicant holds a Diploma of Building and Construction (Building) attained from Harward International College on 7 March 2021, Certificate III in Carpentry attained from Elite training Institute on 14 October 2019 and Diploma of Computing attained from Deakin College on 3 May 2019, which are not qualifications specified in that instrument.

21. In submissions before the Tribunal, the applicant asserts that his former migration agent lodged the application under the incorrect stream. This claim is supported by an email chain confirming the applicant was compensated financially by the former agent for the error.

22. The applicant submits that it was his intention to lodge the application under the Graduate Work Stream and that he also applied for his Provisional Skill Assessment. However, as the former representative applied under the Post Study Work Stream, the lodgement form did not require details for a Provisional Skill Assessment.

23. Having consideration to the error made by the former representative the applicant requested the Tribunal to consider his application under the respective criteria of the Graduate Work Stream.

24. The issues to be determined by the Tribunal in the present case are whether the applicant meets the requirements of cl 485.231 and if not, whether the application can be assessed under the Graduate Work Stream criteria and if so whether the criteria for the Graduate Work Stream are met.

25. At the hearing the Tribunal explained to the applicant the requirements of cl 485.231 and the circumstances of his case. The Tribunal explained that it has no discretion in these matters to waive the requirements of cl 485.231 and based on the information before it, the Tribunal may form the view that the applicant does not hold qualifications specified by the Minister for the purpose of clause 485.231. The Tribunal afforded the applicant an opportunity to comment on the Tribunal’s concerns.

26. The applicant acknowledged that he understood that his qualifications did not satisfy the requirements and told the Tribunal of the circumstances leading to the refusal of his application, primarily due to the selection of the incorrect stream by the former representative.

27. The Tribunal noted the applicant’s request that the application be assessed under the Graduate Work Stream and the circumstances which resulted in his application being submitted under the Post Study Work Stream. The Tribunal explained to the applicant that there are criteria specific to each stream. The Tribunal noted that applications made under the Graduate Work Stream require an applicant to nominate a skilled occupation: Schedule 1 (item 1229(3)(k)). The online application form under the Post Study Work stream does not provide for the nomination of a skilled nomination because it is not required under the Post Study Work Stream - therefore the applicant in this instance has not nominated a skilled occupation.

28. The Tribunal further explained that, if the Tribunal’s conclusion in this regard is incorrect, the applicant may not satisfy the requirements of cl. 485.223 which requires when the 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.

29. The Tribunal notes that the applicant has provided a copy of a receipt issued by Trades Recognition Australia dated 5 January 2021, however there is no evidence before the Tribunal to support that this was provided to the Department at the time the application was lodged on 11 March 2021.

30. At the hearing the representative submitted that due to an error by the former representative, the applicant has been disadvantaged. The representative in oral and written submissions noted Tribunal decisions in which an application was assessed under a different 485 stream to the benefit of an applicant. The Tribunal has noted these decisions and makes the observation that Tribunal decisions are not binding and that said decisions were applicable to circumstances where the application was mistakenly made under the Graduate Work Stream with the intention the application be made under the Post Study Work Stream, which does not require nomination of a skilled occupation or evidence of a skills assessment. In the present case, the application was mistakenly made under the Post Study Work Stream claiming the intention was the application be made under the Graduate Work Stream, which does require nomination of a skilled occupation and evidence of a skills assessment.

31. The Tribunal has empathy for the applicant and acknowledges evidence supporting that if not for an error made by the former representative, his visa application may likely have had a different outcome. However, the Tribunal in conducting a merits review must come to the correct or preferrable decision on the basis of the information before it and in accordance with the applicable law.

32. Having consideration of the evidence before it, the Tribunal finds that the applicant completed a Diploma of Building and Construction (Building) on 7 March 2021 and a Certificate III in Carpentry on 14 October 2019. However, these qualifications are not at the AQF Level 7 or above, therefore these qualifications cannot be used to satisfy the requirements of cl.485.231(1).

    Consideration of visa assessed against the Graduate Work Stream

33. The Tribunal has carefully considered the representative’s submissions that the Tribunal assess the application under the Graduate Work Stream, given the applicant clearly intended to apply under the Graduate Work Stream.

34. In considering the submissions, the Tribunal notes that to make a valid visa application for a Subclass 485 visa, item 1229(3)(j) in Schedule 1 requires an applicant to nominate only one stream to which the application relates. Once the applicant nominates a stream, item 1229(3)(k) requires an applicant to nominate a skilled occupation (if seeking to satisfy the primary criteria in the Graduate Work Stream) and item 1229(3)(l) requires an applicant to have held a student visa at a particular time (if seeking to satisfy the primary criteria in the Post-Study Work Stream).

35. If an applicant nominates the Graduate Work Stream and nominates a skilled occupation in accordance with item 1229(3)(k), then provided other Schedule 1 requirements are met, they will have made a valid application for a Subclass 485 visa in the Graduate Work Stream. In the alternative, if an applicant nominates the Post-Study Work Stream and held a student visa at a particular time in accordance with item 1229(3)(l), then provided other Schedule 1 requirements are met, they will have made a valid application for a Subclass 485 visa in the Post-Study Work Stream. If a valid visa application has been made, the Minister must consider whether the criteria for the visa applied for have been satisfied.[1]

    [1] s 65(1).

36. In the present case it is not disputed that the application was lodged in the Post Study Work Stream. Evidence before the Tribunal supports that the intention however was for the application to be lodged under the Graduate Work Stream. Whilst claims with respect to an applicant’s intention may be relevant, such claims however may not necessarily be determinative of it.[2]

    [2] It is unclear in Singh v MICMSMA [2020] FCA 774 why the Court did not have regard to the applicant’s claimed intention to have applied for a Subclass 485 visa in the alternate stream. Whilst this may have been because the Court considered it irrelevant, it may also have been because the applicant made no claim to have intended to apply for the alternate stream prior to making an application for judicial review to the Federal Circuit Court. In the absence of certainty about this issue, it appears open to the Tribunal to consider claims about an applicant’s ‘intention’ when making a factual finding as to which application was made.

37. Whilst the Tribunal acknowledges due to an error the application was lodged under the incorrect stream, the Tribunal therefore must consider whether a valid application for the Graduate Work Stream has been made, and if so, whether the criteria prescribed for the particular visa that is the subject of the valid application, are satisfied.[3]

    [3] Singh v MICMSMA [2020] FCA 774 at [65].

38. The Tribunal explained to the applicant during the hearing that to make a valid application under the Graduate Work Stream, the applicant must nominate a skilled occupation in the visa application form: Schedule 1 (item 1229(3)(k)). Additionally, the application is required to be accompanied by evidence that the applicant had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority: cl. 485.223.

39. The online application form under the Post Study Work Stream does not provide for the nomination of a skilled nomination, because it is not required under the Post Study Work Stream. The Tribunal has viewed the application form as lodged on behalf of the applicant to the Department on 11 March 2021 and confirms the applicant has not nominated a skilled occupation.

40. Whilst the representative submits “ I would like to emphasis on the fact that there is no explicit definition in the Regulations for the word ‘nominate’, and hence the mention of his studies in the 485 visa application must imply that he nominated the occupation of carpenter post completing Cert III studies.’ Schedule 1 to the Migration Regulations 1994 Item 1229(3)(k) clearly states “An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this paragraph.”

41. There is no evidence before the Tribunal to support the applicant nominated a skilled occupation. Whilst the representative contends that the mention of the applicant’s studies in in Diploma of Building and Construction (Building) and Certificate in Carpentry imply the applicant nominated the occupation of Carpenter, the applicant’s qualifications cover a wide array of occupations. The Tribunal additionally notes an applicant for the Post-Study Work Stream cannot nominate a skilled occupation (as required by item 1229(3)(k)) because the application form does not prompt them to do so. 

42. On the basis of the above findings, the Tribunal finds that the applicant does not meet          cl 485.231(1) hence not satisfying the requirements of cl 485.231.

43. 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.

    Request for referral to the Minister

44. The Tribunal has no discretion to waive the specific requirements in cl.485.231(1) which prescribe the only ways in which that clause can be met. Nor does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion in relation to the merits of this case.

45. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

46. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

47. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.

1. The circumstances which may be unique or exceptional in this case include, relevantly:

   Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

   Is this an appropriate case to refer to the Minister?

2. In this case, for the reasons set out in this decision, the applicant does not hold qualifications of a kind specified by the Minister under IMMI 13/013 and therefore does not satisfy the requirements of cl 485.231(1) of Schedule 2 to the Regulations.

3. The applicant is a 24-year-old national of India who arrived in Australia in January 2018. The applicant undertook studies in Building and Construction, Carpentry and Computing whilst holding a TU subclass 500 visa. On 11 March 2021 the applicant through a migration agent applied for a Temporary Graduate (class VC) Subclass 485 visa under the Post-Study Work stream.

4. The Tribunal notes that the intent of the Temporary Graduate (class VC) Subclass 485 visa is to provide opportunity to international students who have recently graduated with qualifications that are relevant to specific occupations required in Australia, to temporarily live, study and work in Australia.

5. In evidence before the Tribunal, the applicant claims his former migration agent erred in submitting his application under the Post Study Work Stream which is relevant to applicants who have AQF level 7 and above qualifications. The applicant’s qualifications are AQF 5 and 3 and therefore he does not meet the requirements for the granting of a visa under the Post Study Work stream.

6. The Tribunal is satisfied on the evidence provided by the applicant, that an error occurred and that the applicant intended to apply under the Graduate Work Stream. However, for reasons noted in this decision the Tribunal was not satisfied that the matter could be considered under the Graduate Work Stream.

7. The applicant has invested a significant amount of money to undertake his studies in Australia and seeks to utilise and develop his learnt skills whilst undertaking paid employment. If not for an error made by the former migration agent, the applicant’s visa application may likely have had a different outcome.

8. The Tribunal does not consider all the above factors to be exceptional or unique, but taken cumulatively, it considers that it is warranted to refer this matter to the Minister for consideration of the exercise of the Minister's power under s.351 of the Act.

9. While the applicant does not necessarily contribute benefits that may be considered 'unique or exceptional' in Australia, the Tribunal acknowledges that the effects of COVID-19, along with the changing economic landscape have created challenges in attracting and retaining skilled workers particularly in the Australian building industry.

10. Having regard to the circumstances of the applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicants’ case. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act.

11. The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.

    DECISION

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

    Karen McNamara
    Member