Garcia Llanos (Migration)

[2017] AATA 2242

Garcia Llanos (Migration) [2017] AATA 2242 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr John Byron Garcia Llanos
Mrs Viviana Maria Valenzuela Palacio

CASE NUMBER:  1611839

DIBP REFERENCE(S):  BCC2016/2220585

MEMBER:Katie Malyon

DATE:1 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 01 November 2017 at 12:47 pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post-Study Work stream – Australian study requirement not satisfied in period of 6 months before application made – Credibility concerns

LEGISLATION
Administrative Appeals Tribunal Act 1975, s.2A
Education Services for Overseas Students Act 2000, s.9
Migration Act 1958, ss 65,359a, 363

Migration Regulations 1994, r.1.03, r.1.15F, r.2.26AC(6) Schedule 2, cl 485.231, cl.485.111

CASES

Huo v MIMIA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28

MIAC v Li [2013] HCA 18

MIBP v Singh [2014] FCAFC 1
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC & Anor [2008] FMCA 409

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 18 July 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 June 2016 in the Post-Study Work stream. Visa Class VC contains Subclass 485. For visa applications made before 1 July 2013, there is also a Subclass 487: however, that Subclass is not relevant to the present matter. 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) which includes 2 streams: the Post-Study Work stream; and, the Graduate Work stream.  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 found that the applicants applied in the Post-Study Work stream and refused to grant the visas because the first named applicant, Mr John Byron Garcia Llanos, did not satisfy cl.485.231(3) of Schedule 2 to the Regulations because, based on evidence lodged with the Department, Mr Garcia Llanos completed his Master of Project Management at the Queensland University of Technology (QUT) after his Subclass 485 visa application in the Post-Study Work stream was made.  Evidence in the Department’s file includes a Confirmation of Course Completion letter provided by QUT’s Cindy Myers, Manager of Client Services dated 8 July 2016 confirming Mr Garcia Llanos completed his course on 6 July 2016 and an unofficial Academic Record confirming course requirements were completed on 6 July 2016, that is, 6 days after lodgement of his Subclass 485 visa application. 

4. Mr Garcia Llanos appeared before the Tribunal on 19 September 2017 by teleconference from Brisbane to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing by teleconference from Brisbane.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Mr Garcia Llanos is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations and which require that:

   1)the applicant holds a qualification or qualifications of a kind specified by the Minister: cl.485.231(1);

   2)each qualification must have been conferred or awarded by an educational institution specified by the Minister: cl.485.231(2); and,

   3)the applicant’s study for the qualification or qualifications satisfied the ‘Australian study requirement’ in the period of 6 months ending immediately before the day the visa application was made: cl.485.231(3) of Schedule 2 of the Regulations.

7. The issue in this case is whether Mr Garcia Llanos meets the cumulative requirements in cl.485.231 of Schedule 2 of the Regulations.

   Does the applicant hold a specified qualification?

8. IMMI 13/013 dated 19 March 2013 specifies for the purposes of cl.485.231(1) of Schedule 2 of the Regulations the following qualifications that are the result of study undertaken at the Australians Qualification Framework (AQF) level 7 or higher (emphasis added):

   ·Bachelor Degree;

   ·Bachelor (Honours) Degree;

   ·Masters by Coursework Degree;

   ·Masters by Research Degree;

   ·Masters (Extended) Degree; and/or

   ·Doctoral Degree.

9. Based on evidence in the Department’s file, the Tribunal is satisfied that Mr Garcia Llanos has completed a Diploma of Project Management and an Advanced Diploma of Management at the Australian National Institute of Business & Technology Pty Ltd and as well as a Master of Project Management at QUT. 

10. The website for the Commonwealth Register of Institution and Courses for Overseas Students (CRICOS) confirms that QUT’s Master of Project Management (CRICOS 084927B) is a Masters by Coursework Degree. The Tribunal finds Mr Garcia Llanos holds a specified qualification and, accordingly, meets cl.485.213(1) of Schedule 2 to the Regulations.

11. For completion, the Tribunal notes that Mr Garcia Llanos’ Diploma of Project Management and Advanced Diploma of Management are, respectively, qualifications at Level 5 and Level 6 of the AQF levels. These qualifications are not specified in IMMI 13/013 and, accordingly, cannot be considered for the purposes of meeting the criteria in the Post-Study Work stream of cl.485.213(1) of Schedule 2 to the Regulations.

    Has the qualification been awarded by a prescribed educational institution?

12. IMMI 13/031 dated 19 March 2013 specifies of the educational institutions for the purposes of cl.485.231(2) of Schedule 2.

13. It is not in dispute that QUT is an Australian university registered on CRICOS which offers courses at degree level and above. As such, it is a prescribed institution. Since Mr Garcia Llanos’ Master of Project Management has been awarded by a prescribed institution he meets the criteria in cl.485.213(2) of Schedule 2 to the Regulations.

    Does the applicant meet the Australian study requirement in the 6 months before the visa application is made?

14. 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; and,

    (b)  that were completed in a total of at least 16 calendar months; and,

    (c)  that were completed as a result of a total of at least 2 academic years study; and,

    (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.

15. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms: see r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000: IMMI 09/040.

16. Regulation 1.15F(2) defines the term ‘completed’ a degree, diploma or trade qualification as follows:

    (2) In this regulation: completed, in relation to a degree, diploma or trade qualification means having met the academic requirements for its award.

    Note:  The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

17. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC & Anor[1] where the Court held that an applicant completes the academic requirements for a course when they achieve the necessary results or credits to enable the applicant to be awarded the degree or diploma.  The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature.  Burchardt FM acknowledged that certain steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university.[2]  The term ‘completed’ was also considered in Sapkota v MIAC where Cowdroy J held the relevant date for determining when a student has completed the academic requirements is the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the institution.[3]  The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award. 

    Documentation provided prior to the hearing

    [1] Venkatesan v MIAC & Anor [2008] FMCA 409

    [2] Ibid, Burchardt FM at [17]

    [3] Sapkota v MIAC [2012] FCA 981, Cowdroy J at [26]

18. Accompanying the application for review to the Tribunal, Mr Garcia Llanos’ representative  provided a submission together with a number of documents including, relevantly:

    ·a copy email from Dr Madhev P Nepal, Course Coordinator for the Master of Project Management from QUT’s School of Civil Engineering & Built Environment dated 26 July 2016 which states, in part:

    “From a course perspective, the final results and unit results from PM15/PM20 were all submitted on or before June 27.” (emphasis added); 

    ·extract from QUT website confirming QUT Course code PM20 Master of Project Management (CRICOS 084927B ) is a full-time course of 1.5 years duration; and,

    ·the Confirmation of Enrolment (CoE) issued to Mr Garcia Llanos confirming course details for the Master of Project Management (CRICOS 084927B) at QUT starting on 23 February 2015 and ending 30 June 2016.

    The Tribunal’s requests for information made prior to the hearing

19. Following receipt of documentation from Mr Garcia Llanos’ representative and in an effort to resolve the inconsistency between documentation provided by QUT (on the one hand, the email from Dr Nepal which states that final results and unit results were all submitted on or before 27 June 2016 and, on the other, the Confirmation of Course Completion letter and unofficial Academic Record in the Department’s file which state that Mr Garcia Llanos completed his degree on 6 July 2016) as well as confirm the genuineness of Dr Nepal’s email of 26 July 2016, the Tribunal wrote to Ms Cindy Meyers, Manager of Client Services at QUT requesting confirmation of the authenticity of Dr Nepal’s email and the date that Mr Garcia Llanos completed his Master of Project Management degree having regard to analysis of the term ‘completed’ outlined in the court decisions referred to above.  A reply was received from Peter Wickins, Senior Coordinator with QUT’s Student Business Services on 5 September 2017.  Mr Wickins notes that, following an organisational restructure, Ms Meyers’ responsibilities in relation to course completion certification have been transferred to him.

20. Mr Wickins notes that, whilst he cannot formally certify the email sent from Dr Nepal, he has no reason to doubt the authenticity of the email.  He also notes that there is a 2 step process for “finalisation of results” at QUT.  Individual unit coordinators (such as Dr Nepal) upload their results to the assessment management system ready for consideration and approval by the relevant faculty academic board (Step 1).  Once results have been approved by the academic board, they are transferred to QUT’s student information system and formally ratified and released (Step 2).  Mr Wickens states that, with the ratification of results on 6 July 2016, Mr Garcia Llanos’ status changed from ‘potentially complete’ to ‘completed‘ in the student information system and, accordingly, 6 July 2016 is the date he completed his course.  Mr Wickins opines that, in respect of the finding by Cowdroy J, QUT regards the ratification of results in Step 2 as the date on which the results are finalised by the institution and this date for Mr Garcia Llanos was 6 July 2016 (emphasis added).  He also states that Dr Nepal’s reference to the final results and unit results for PM15/20 were all submitted on or before June 27 relates to Dr Nepal’s responsibilities as unit coordinator in Step 1. 

21. It appeared to the Tribunal that, consistent with the observations of not only Burchardt FM in Venkatesan but also Cowdroy J in Sapkota referred to above that, following the academic board meeting, certain steps were required but they were purely administrative steps which did not require any form of academic effort by the applicant or any evaluation of any such effort by the University.  Accordingly, the Tribunal wrote a follow-up letter to Mr Wickins on 6 September 2017 seeking clarification of the date of the faculty academic board meeting.  The Tribunal did not receive a response until just after the hearing.  Mr Wickins’ response to the Tribunal’s follow-up letter is discussed below. 

22. In addition, prior to the hearing, the Tribunal wrote to Mr Garcia Llanos on 4 September 2017 pursuant to s.359A of the Act. That letter, in part, states as follows:

    I am writing in relation to the application for review made by you in respect of a decision by the Department of Immigration and Border Protection to refuse to grant you Skilled (Provisional) (Class VC) visas. 

    In conducting this review, the Tribunal is required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·     The CRICOS website confirms your Master of Project Management completed at the Queensland University of Technology has a duration of 78 weeks.  To meet the Australian study requirement in r.1.15l of the Migration Regulations 1994 you must have completed at least 2 academic years of study in Australia, that is, a total of 92 weeks.  As you have applied in the Post-Study stream for a Subclass 485 visa only those qualifications held and study undertaken by you at the level of a Bachelor Degree, Bachelor (Honours) Degree, Masters by Coursework Degree, Masters by Research Degree, Masters (Extended) Degree and/or a Doctoral Degree may be considered against the Australian study requirement.  Other qualifications obtained by you and other study undertaken by you cannot be considered. 

    This information is relevant because the Tribunal may find that you do not meet the Australian study requirement and, as a result, may find that you do not meet the requirements for grant of a Subclass 485 visa. 

    If we rely on this information and making a decision, we may affirm the decision under review.  This means that the effect of the Departmental decision to refuse the grant of a Temporary Graduate (Post-Study Work) (Subclass 485) visa, remains in force.

    You are invited to provide comments on or respond to the above information in writing. 

23. Mr Garcia Llanos responded to the Tribunal’s letter on 5 September 2017.  The contents of his letter in response are echoed in his oral evidence to the Tribunal and are discussed below.

    Hearing

24. At the outset, the Tribunal noted it is not in dispute that Mr Garcia Llanos has completed a Master of Project Management at QUT.  The issue before the Tribunal is the date that he completed the course and, arising from the Tribunal’s review of documentation in the Department’s file, whether his course was completed as a result of a total of at least 2 academic years study.  The Tribunal observed that it was still awaiting a final response from QUT to resolve the inconsistency between documentation provided by QUT referred to above at paras [19] – [21].

25. Asked for his comments in relation to the Tribunal’s letter of 4 September 2017 issued pursuant to s.359A of the Act, Mr Garcia Llanos echoed the statements in his submission provided to the Tribunal prior to the hearing. He said that, before applying for his Subclass 485 visa, he called the Department’s Customer Service Line to clarify a couple of doubts that he had. His doubts related to: completion of his course and how completion is measured; the duration (that is, the period of validity) of an English language test; and, meeting the Australian study requirement for the Post-Study Work stream.

26. Mr Garcia Llanos explained that, prior to completing his Master of Project Management, he had to extend his visa for the last semester due to the fact that he had originally started studying a Master of Engineering Management:  but, as he was not happy with that course, he decided to change to the Master of Project Management which extended the time for his study by one semester.  He added that he did not have the benefit of advice from a Registered Migration Agent at the time and so he called the Department.  He said he called first around February 2016 (in his statement he says it was March 2016) for guidance not only about (the one semester) extension of his Student visa but also to clarify if he could apply for a Subclass 485 visa.  Then, in early June 2016, he called the Department again with essentially the same questions and was advised about:

    1)the meaning of completion – he said he was told he would be OK as long as he had finished all the subjects and could prove it by reference to documents such as a CoE, completion letter or parchment;

    2)English language test results – he said he was told that, although his test results would expire in the first week of July 2016, his current test results should be fine but, if not, he would be asked by the Department to take the test again to give him time to provide the necessary evidence; and,

    3)his suitability for either the Post-Study Work stream or Graduate Work stream - he said he was told to open his computer and the Departmental officer took him through relevant parts of the website.  Together, they checked that the combined duration of his 3 courses in Australia (first, his Diploma of Project Management, then his Advanced Diploma of Management and, finally, his Master of Project Management) was at least 92 weeks and then that his final course was at Level 7 or higher (his Masters’ degree is a Level 8 course).  They also checked all the courses were taught in English and he did them whilst he held Student visas.

27. Having reviewed the information with the Departmental officer’s guidance and without the benefit of advice from a Registered Migration Agent, Mr Garcia Llanos said he decided to pursue the Subclass 485 visa in the Post-Study Work stream.  He added that, unlike now, the Department’s website then did not say that eligible qualifications had to be at Level 7 or above.  Now, he said, it is very clear on the Department’s website that for the Post-Study Work stream courses must be at Level 7 or above.

28. In his oral evidence, Mr Garcia Llanos told the Tribunal that he did not see or read the legislation.  Rather, he was guided through requirements for a Subclass 485 visa in his 2 telephone conversations with a Departmental case officer and having regard to information set out on the Department’s website at that time.  Based on that, he thought he met the criteria because he had studied in Australia for at least 2 years, his most recent course was at (AQF) Level 8 and his earlier courses were ‘closely related’ to his Master of Project Management. 

1. The Tribunal observed that the term ‘closely related’ does not arise in the context of criteria for the Post-Study Work stream but, rather, the Graduate Work stream where it is a requirement that each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.  Mr Garcia Llanos said he did not see the issue then because he had relied on information in the Department’s web page at the time, whereas unlike now it is very clear that the concept relates only to the Graduate Work stream: when he applied on June 2016, it was not clear. 

2. Mr Garcia Llanos’ representative said he has some sympathy for his client because he just relied on information provided by the Departmental officer as well as what was available at the time on the Department’s website.  No evidence was provided to the Tribunal of any material downloaded from the Department’s website at the time of Mr Garcia Llanos’ discussions with a Departmental officer or at the time of his Subclass 485 visa application.

3. During the course of the hearing, Mr Garcia Llanos told the Tribunal that he was aware he had a number of visa options but had opted to pursue application for a Subclass 485 visa, as so many of his friends had done.  He also told the Tribunal about his work in Brisbane and his imminent plans to apply for a skills assessment from Engineers Australia. 

   Documentation received after the hearing

4. On the same day as the hearing - but, after the hearing - Peter Wickins responded to the Tribunal’s second letter referred to above in para [21] seeking clarification about the date of the faculty academic board meeting.  The Tribunal had written to Mr Wickins on the basis that, consistent with the observations of not only Burchardt FM in Venkatesan v MIAC & Anor but also Cowdroy J in Sapkota v MIAC, it appeared to the Tribunal that following the academic board meeting, certain steps were required but they were purely administrative steps which did not require any form of academic effort by Mr Garcia Llanos or any evaluation of any such effort by the University. 

5. In his response dated 19 September 2017, Mr Wickins advised that the faculty academic board met on 4 July 2016 (emphasis added).

6. After the hearing, Mr Garcia Llanos forwarded to the Tribunal a copy of a favourable skills assessment from Engineers Australia dated 9 October 2017 in the occupation of Industrial Engineer ANZSCO 233511.  The assessment recognises his Bachelor of Industrial Engineering qualification from the Universidad Autonoma de Occidente in Santiago de Cali, Colombia awarded May 2011 as well as the Master of Project Management awarded by QUT in July 2016.  It also recognises Mr Garcia Llanos has 12 months relevant Australian skilled employment in his occupation of Industrial Engineer in the period August 2016 to August 2017.  The Tribunal notes that the skills assessment expressly states it is issued by Engineers Australia for the purposes of awarding points under the General Skilled Migration points test.

   Findings

7. Based on evidence on the CRICOS website the Tribunal finds that a Master of Project Management degree at QUT is registered for 78 weeks.  As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years study - that is, at least 92 weeks of study consistent with IMMI 09/040 - the Tribunal finds that Mr Garcia Llanos does not meet the Australian study requirement.  Furthermore, based on Mr Wickins’ letter of 19 September 2017, the Tribunal finds that Mr Garcia Llanos completed his Master of Project Management degree on 4 July 2016, that is, 4 days after he applied for his Subclass 485 visa. In the circumstances, the Tribunal finds that Mr Garcia Llanos does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day his visa application was made as required by cl.485.231(3) of Schedule 2 to the Regulations.

8. Accordingly, Mr Garcia Llanos does not satisfy the requirements of cl.485.231 of Schedule 2 of the Regulations.

9. The Tribunal has had regard to Mr Garcia Llanos’ claims that he relied on advice from the Department in choosing to pursue the Post-Study Work stream for a Subclass 485 visa.  In the Tribunal’s opinion, it is regrettable that any of these unsubstantiated claims regarding advice given to him, were inaccurate or misleading.  However, having carefully considered the information that Mr Garcia Llanos said was relayed to him by a Departmental officer, the Tribunal has some concerns regarding the credibility of his claims.  The Tribunal’s concerns are briefly outlined below:

   1)in relation to the meaning of the word completion, Mr Garcia Llanos said that he was told he could prove completion of his degree by reference to 3 documents including a Confirmation of Enrolment.  However, a CoE is issued to a student by an educational institution as evidence of confirmation of enrolment in a course to enable them to apply for a Student visa, or extension of an existing Student visa: it is not a document issued upon ‘completion’ of a course, or qualification;

   2)regarding his ability to use his English language test which expired on the first week of July 2016, Mr Garcia Llanos said he was told his current test would be fine but, if not, the Department would ask him to take another test. However, this is clearly not the case as it is a strict criterion for of a Subclass 485 visa that an applicant has undertaken an English-language test within the 3 years before the date on which the application was made and achieved the requisite score: cl.485.212 of Schedule 2 to the Regulations and IMMI 15/062. There is no discretion to waive this requirement. Departmental records indicate that Mr Garcia Llanos had undertaken an IELTS test on 6 July 2013 so he could have used his existing IELTS results to accompany a Subclass 485 visa application until 5 July 2016; and,

   3)in relation to pursuing either the Post-Study Work stream or Graduate Work stream, Mr Garcia Llanos said he was told the combined duration of his 3 courses in Australia was at least 92 weeks and, as his last course was at Level 7 or higher, the Post-Study Work stream was appropriate.  However, for the reasons outlined above, this is not correct: his Level 8 course was for 78 weeks only.

10. The Tribunal accepts that transitioning from a Student visa to a Subclass 485 visa and making the most of a person’s investment - both in time and money - in years of study in Australia can be stressful for international students.  It also accepts that immigration law is one of the most technical areas of law in Australia and that it is likely, in the circumstances of this case, there was some misunderstanding or misinterpretation of any guidance provided by a Departmental officer.  Even if some of the claims made by Mr Garcia Llanos in relation to advice from the Department are accurate (and, for the reasons referred to above, the Tribunal has some doubts in this regard) the Tribunal has no discretion and must apply the law.  As noted above, the law is clear that an applicant in the Post-Study Work stream must have completed at least 2 academic years study (that is, at least 92 weeks) in Australia at AQF Level 7 or above.  This has been the case since the Migration Legislation Amendment Regulation 2013 (No.1) introduced the Post-Work Study stream to the Subclass 485 visa on 23 March 2013 and commencement of the relevant legislative instrument IMMI 13/013 of 23 March 2013.  Clearly, Mr Garcia Llanos does not meet this criteria for the reasons outlined above. 

11. On the basis of the above findings, the first named applicant does not satisfy the criteria for the grant of a Subclass 485 visa.  There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of a Subclass 485 visa.  As this is the only relevant Subclass in this case, the decision under review must be affirmed. 

    Is this an appropriate case for the Tribunal to adjourn its review?

12. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, to provide a mechanism of review that: is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975. 

13. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow Mr Garcia Llanos additional time to make other arrangements to regularise his visa status in Australia.

14. There is no obligation on the Tribunal to delay its decision making merely because an applicant wishes to attempt, either at Departmental level or in another forum, to meet statutory criterion: Huo v MIMIA[4] and Manna v MIAC.[5]  The Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to the High Court of Australia decision in MIAC v Li [6] regarding the reasonableness of any request for an adjournment and the Full Federal Court of Australia decision in MIBP v Singh[7] which considered this issue, as well as the decision in Kaur v MIBP[8] where analogous issues were discussed.

    [4] [2002] FCA 617

    [5] [2012] FMCA 28

    [6] [2013] HCA 18

    [7] [2014] FCAFC 1

    [8] [2014] FCA 915

15. During the course of the hearing, Mr Garcia Llanos told the Tribunal that he was aware that he had a number of visa options after completion of his studies at QUT in Brisbane but, largely based on advice from the Departmental officers with whom he spoke as well as the Department’s website, he opted to pursue the Subclass 485 visa pathway.  He had also spoken with a couple of friends.  However, he did not seek professional advice. 

16. Mr Garcia Llanos told the Tribunal he is currently working as an Industrial Engineer with the Albert Smith Group in Brisbane.  He said the business employs more than 120 people and has successfully sponsored a few Subclass 457 visa holders from around the world.  Details on the website of the Albert Smith Group confirms the business, established in Brisbane in 1873, remains in the Smith family and proudly carries on the tradition of quality manufacturing which has seen the firm grow to become one of Australia’s largest signage companies with both national and international locations.  The Albert Smith Group pioneered many of the standards and technologies used in the sign industry globally today.   Mr Garcia Llanos added that his employer is willing to sponsor him but, personally, he would prefer to apply for residence in Australia himself, that is, without the need for assistance from his employer.  He added he has considered applying for a skills assessment from Engineers Australia as an Industrial Engineer and then lodging an Expression of Interest to apply for General Skilled Migration to Australia.  He observed he has discussed this with his current representative who advised he would need to leave to apply for any such visa as he is currently holding a Bridging A visa and thereby precluded, with limited exceptions, from lodging a visa application whilst he remains in Australia.

17. Mr Garcia Llanos’ representative told the Tribunal that, in the event the Tribunal affirms the decision of the Department, his client would need to leave Australia within a month to lodge a visa application offshore and then await the outcome of that application, or take the Tribunal’s decision to the Federal Circuit Court of Australia. 

18. Noting that the Tribunal was yet to receive a letter from QUT in response to its most recent request regarding the date he completed his degree and, notwithstanding the fact that as set out in the Tribunal’s s.359A letter forwarded prior to the hearing, CRICOS confirms Mr Garcia Llanos’ Master of Project Management completed at QUT has a duration of only 78 (not 92) weeks which means that it appears he cannot meet the Australian study requirement - and, as a result, it appears the Tribunal must affirm the decision of the Department - the Tribunal raised the possibility of Mr Garcia Llanos providing the Tribunal with evidence of lodgement of a nomination application by the Albert Smith Group.

19. With this in mind and having regard to the Tribunal’s power to adjourn a review, the Tribunal posited a 3 week timeframe for providing evidence of lodgement with the Department of a fully-documented decision-ready nomination application by Mr Garcia Llanos’ employer to justify an adjournment to the review.  After brief consultation with Mr Garcia Llanos, his representative agreed that such evidence could be lodged with the Tribunal on or before Friday, 6 October 2017.  The Tribunal indicated that, provided it received evidence of a fully-documented decision-ready nomination having been lodged with the Department on a before 6 October 2017, it would favourably consider a request to delay making a decision for 3 - 4 months thereby allowing sufficient time for the Department to process the nomination application such that Mr Garcia Llanos would only need to leave Australia for a short period of time to allow lodgement offshore of a possible Subclass 457 visa.  Both Mr Garcia Llanos and his representative indicated their agreement to this timeframe. 

20. After the hearing, no documentation was received by the Tribunal other than the skills assessment from Engineers Australia referred to above.  The Tribunal again contacted Mr Garcia Llanos’ representative affording a further short period to Tuesday, 10 October 2017 for providing evidence confirming lodgement with the Department of a fully-documented decision-ready nomination application.  As at the date of this decision, no such documentation has been provided to the Tribunal.

21. In this case, the Tribunal is of the opinion that it has afforded Mr Garcia Llanos an opportunity to demonstrate that his employer would sponsor him for a Subclass 457 visa.  The Tribunal does not consider it reasonable to adjourn the case to await the outcome of a possible application for permanent residence by Mr Garcia Llanos, noting that the timeframe and outcome of any proposed such application are not yet known.  Nor does it consider it reasonable to defer its decision to a speculative date in the future when his employer will lodge a nomination application sponsoring Mr Garcia Llanos for a Subclass 457 visa. 

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Katie Malyon

    
    Member