Golar (Migration)

[2020] AATA 3339

Golar (Migration) [2020] AATA 3339 (14 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narinder Singh Golar

CASE NUMBER:  1820815

HOME AFFAIRS REFERENCE(S):          BCC2018/1804402

MEMBER:Warren Stooke AM

DATE:14 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 14 August 2020 at 10:47am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – graduate work stream – application made before course completed – course completion date – evidence from education provider – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221

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 28 June 2018 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 24 April 2018. 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). 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 on the basis that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because at the time of application the delegate found that the applicant had not provided evidence of completion of his course of study.

4. The applicant appeared before the Tribunal on 15 July 2020 to give evidence and present arguments and it was submitted by the applicant that he had completed his course of study prior to the application for his 485 visa, however, his college of study had not responded to his request for confirmation that he had completed the course prior to 24 April 2018. The applicant requested that the Tribunal contact the college to confirm advice on the course of study, which the Tribunal agreed to undertake and adjourned the hearing until 29 July 2020.

5. On 16 July 2020, the Tribunal corresponded with the Australian Careers Education Pty Ltd concerning confirmation of the applicant’s course completion date and on the same day, the CEO for the Australian Careers Education Pty Ltd advised the Tribunal of the following information:

   “Our records indicate that Mr Golar completed his formal classes and coursework in the Diploma of Business (BSB50215) on the 2nd May 2018. His Confirmation of Enrolment (CoE) ended on 6th May 2018.”

6. On 23 July 2020, the Tribunal, under s359(2) corresponded with the applicant with the following request for comment:

   “Dear Mr Golar,

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR
   NARINDER SINGH GOLAR

   I am writing in relation to the application for review made by you in respect of a
   decision to refuse to grant a Skilled (Provisional) (Class VC) visa.
   In conducting the review, we are 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:

   ·On hearing dated 15 July 2020 you claimed that the completion date of your

   course work for your Diploma of Business was in March 2018, prior to your visa application on 24 April 2018

   ·The Tribunal wrote to the Australian Careers Education on 16 July 2020 to confirm the completion dates for all formal classes and exams.

   On 16 July 2020 the Australian Careers Education responded with the following:

   “We are writing to you in response to your request for information regarding Mr
   Narinder Singh Golar.

   Our records indicate that Mr Golar completed his formal classes and
   coursework in the Diploma of Business (BSB50215) on the 2nd May 2018. His
   Confirmation of Enrolment (CoE) ended on 6th May 2018.”

   This information is relevant to the review because it appears that the completion date
   of your Diploma of Business is after the lodgement date of your visa application on 24 April 2018.

   If we rely on this information in making our decision, we may find the information we
   received a reason or part of the reason for finding you have not met Regulation 485.221 and for affirming the decision under review.

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

7. On 29 July 2020, the Tribunal resumed the hearing for the applicant, which was also attended by his registered migration agent.

8. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which includes cl.485.221 of Schedule 2 to the Regulations, relying on completion of a number of qualifications in Australia. Clause 485.221 requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets the Australia study requirements pursuant to 485.221.

11. The applicant is a 25 year old from India, who provided evidence that he completed the following courses of study:

    a.Certificate III in Commercial Cookery from 29 June 2015 to 26 June 2016;

    b.Certificate IV in Commercial Cookery from 25 July 2016 to 22 January 2017;

    c.Diploma of Hospitality from 3 March 2017 to 6 August 2017;

    d.Diploma of Business from 6 November 2017 to 6 May 2018.

12. The applicant claimed in the hearing that he completed his Diploma of Business course in mid March 2018, however, he was not able to provide evidence, at the hearing on 16 July 2020 to support this claim. The applicant stated that the college would not respond to his request for information and he requested that the Tribunal ask the college to provide confirmation.

13. On 16 July 2020, the Tribunal requested the Australian Careers Education Pty Ltd to provide information to confirm when the applicant completed his Diploma of Business course and on the same day the college responded that the applicant completed the course on 2 May 2018. This information was provided to the applicant under s359(2) with the invitation to comment.

14. At the resumed hearing on 29 July 2020 the Tribunal provided the opportunity for the applicant to make submissions concerning the information provided to the applicant in the Tribunal’s correspondence of 23 July 2020 noting that the advice to the Tribunal, from the college, was that the Diploma of Business course was completed on 2 May 2018. The Tribunal noted that it was obliged to accept the evidence of the institution.

15. The representative for the applicant submitted that the Confirmation of Enrolment advised that the course was due to complete on 6 May 2020 and that the correspondence from the school advised that the course finished on 2 May 2020.

16. The Tribunal explained to the applicant that the Federal Court has accepted that a course is complete when the formal work has been completed, including examinations and the marking of all course work, rather than the administrative act of formally confirming the completion. As such, the Tribunal was prepared to provide the applicant with additional time to produce, such evidence from the Australian Careers Education Pty Ltd.

17. The representative asked the Tribunal to consider accepting the oral evidence of the applicant concerning earlier completion and the Tribunal responded that it was prepared to give the applicant until 5.00pm on 12 August 2020 to provide further evidence.

18. On 12 August 2020, the representative provided the Tribunal with correspondence sent to Australian Careers Education Pty Ltd on 6 August 2020, however, this correspondence has not been met with any response at the time of decision.

19. On the basis of the formal documentary evidence before the Tribunal from the Australian Careers Education Pty Ltd, the Tribunal is satisfied that the applicant completed his Diploma of Business course on 2 May 2018. As such, the Tribunal finds that the applicant submitted his application for a 485 Skilled visa on 24 April 2018, which was prior to the completion of his nominated course of study.

20. On the basis of the evidence confirmed by Australian Careers Education Pty Ltd, the Tribunal finds that the applicant does not satisfy cl.485.221.

21. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Warren Stooke AM
    Member