Gonzalez Rodriguez (Migration)

[2023] AATA 560

Gonzalez Rodriguez (Migration) [2023] AATA 560 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Miler Ivan Gonzalez Rodriguez

CASE NUMBER:  2112611

HOME AFFAIRS REFERENCE(S):          BCC2019/86266

MEMBER:Alison Mercer

DATE:6 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 6 February 2023 at 3:42pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – Certificate IV of Business – Advanced Diploma of Engineering Technology – completion date – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 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 1 September 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 13 January 2020. 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 (Cth) (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 485.221 of Schedule 2 to the Regulations, which required that the applicant met the Australian study requirement in the 6 months immediately before he made his visa application. The delegate found that the Australian courses and dates provided in the online visa application by the applicant were as follows:

   ·Certificate IV of Business from 10 March 2016 to 10 September 2016; and

   ·Advanced Diploma of Engineering Technology – Electrical from 28 July 2017 to 1 July 2019.

4. The delegate further found that the letter of completion provided by the applicant from TAFE International WA stated that the completion date of his Advanced Diploma of Engineering Technology – Electrical was 5 July 2019. The delegate therefore found that the applicant did not complete an Australian qualification that met the Australian study requirement in the 6 months immediately before 13 January 2020 as there was no evidence of the applicant having completed any other courses than the ones listed in his visa application.

5. The Tribunal received a review application from the applicant on 18 September 2021. It was accompanied by a copy of the delegate’s decision.

6. On 27 July 2022, the Tribunal wrote to the applicant to invite him to attend a hearing to be conducted by videoconference on 11 August 2022. It also requested that he provide any material that he wished to rely on by 4 August 2022.

7. On 31 July 2022, the applicant advised the Tribunal that he would attend the hearing and required a Spanish interpreter. He also provided the following:

   ·copy of the biodata page of his passport;

   ·copy of International English Language Testing System (IELTS) test form for a test undertaken by the applicant on 19 March 2022;

   ·copy of a positive skill assessment issued to the applicant by Engineers Australia on 20 November 2019 for the occupation of Electrical Engineering Draftsperson (ANZSCO code 312311);

   ·copy of the applicant’s Confirmation of Enrolment (CoE) for Diploma of Project Management at Keystone College of Business and Technology, course dates 7 October 2019 to 5 April 2020; and

   ·copy of Expression of Interest for Skills Select program, indicating that the applicant made an EoI application on 25 May 2022 for a subclass 491 (Skilled Work – Regional) (Provisional) visa, seeking nomination by the government of Western Australia.

8. On 6 August 2022, the applicant provided further material:

   ·copy of CoE for the applicant for Certificate IV in Business with the West Australian Institute of Further Studies, course dates 10 March 2016 to 10 September 2016;

   ·copy of CoE for the applicant for Diploma of Leadership and Management at West Australian Institute of Further Studies, course dates 7 November 2016 to 17 July 2017;

   ·copy of CoE for the applicant for Advanced Diploma of Engineering Technology – Electrical with TAFE International Western Australia, course dates 28 July 2017 to 5 July 2019;

   ·copy of CoE for the applicant for Advanced Diploma of Leadership and Management with the West Australian Institute of Further Studies, course dates 4 September 2017 to 14 May 2018;

   ·copy of CoE for the applicant for Diploma of Project Management with the Keystone College of Business and Technology, course dates 7 October 2019 to 5 April 2020;

   ·copy of ongoing BUPA Essential Visitor health cover held by the applicant, March 2022;

   ·copy of Australian Federal Police check for the applicant issued 3 May 2022;

   ·copy of letter of completion issued to the applicant by South Metropolitan TAFE (part of TAFE International Western Australia) on 4 March 2020 indicating that he completed Advanced Diploma of Engineering Technology – Electrical, commenced 17 July 2017 and completed on 5 July 2019;

   ·copy of letter of completion issued to the applicant by West Australian Institute of Further Studies on 15 May 2022 indicating that he completed a Certificate IV between 10 March 2016 and 10 September 2016, and a Diploma of Leadership and Management between 7 November 2016 and 17 July 2017; and

   ·copy of job description for the applicant for the position of Electrical Engineering Technician (ANZSCO code 312311) with CadCut CNC Laser Cutting and Pressing, undated.

9. The applicant appeared before the Tribunal on 11 August 2022 by videoconference to give evidence and present arguments. The Tribunal was assisted by the services of an interpreter in the English and Spanish languages.  

10. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the ongoing COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, 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 videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

11. The applicant confirmed that he had completed all the courses for which he had provided CoEs. In particular, he agreed that he completed his Advanced Diploma of Engineering Technology on 5 July 2019, and he clarified that he subsequently completed a Diploma of Project Management in early April 2020. He could not remember whether this qualification was completed on 5 April 2020, the course end date listed in the CoE, but said that it was definitely around that date, as he had not had any delays in completing the qualification or course extensions. He agreed that the completion date of this course was after the date that he lodged his subclass 485 visa application.

12. The applicant told the Tribunal that he had not fully appreciated that it was a requirement that he lodged the subclass 485 visa application within 6 months of completing the Advanced Diploma. He said that he thought that, as he was studying another course after that, he had longer to do so. He also noted that he was trying to obtain the required English test results in this period as well. The applicant said that he did not appreciate the significance of this issue and was dismayed when he received the Department’s refusal decision.

13. In response to the Tribunal’s query, the applicant said that he looked for work in his field after completing his last course, but it was difficult as by that time, he held a bridging visa, and Australian employers were concerned about its indefinite status. However, he was employed by his present employers, CadCut CNC Laser Cutting and Pressing in Perth, about 18 months ago as an Electrical Engineering Technician. Both he and his employer were keen for him to continue in this role, as he was a valued employee and there was a documented shortage of Engineering professionals in Australia, including Western Australia. The applicant confirmed that, with the support of his employer, he put in an Expression of Interest for a subclass 491 (Skilled Work – Regional) (Provisional) visa, seeking nomination by the government of Western Australia, in late May 2022. He said that he hoped to hear back favourably in the next few months. He had been told that all vacancies with the government were full at present, but hoped that new ones would open up shortly. He said that he calculated that he had good prospects for success, given his Australian qualifications and work experience, and his English proficiency. At the Tribunal’s request, he undertook to attempt to get an updated processing time estimate from the Department for this visa category.

14. The applicant noted that his family remained in Colombia, which was difficult for all of them. He had intended to bring his family here when he obtained a subclass 485 visa, but this had been derailed when the visa was refused. He asked the Tribunal for as much time as possible to enable him to obtain a subclass 491 visa.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

16. The applicant is seeking to satisfy the primary criteria for a subclass 485 visa in the Graduate Work stream which include cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222). The issue in the present case is whether the applicant meets those requirements.

    Does the applicant meet the Australian study requirement?

17. Under reg 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:

    ·that are registered courses; and

    ·that were completed in a total of at least 16 calendar months; and

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·for which all instruction was conducted in English; and

    ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

18. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 1.03, 1.15F and 2.26AC(6), and cl 485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (LIN 19/085).

19. The issue in this case is whether any of the courses completed by the applicant in Australia were completed in the 6 months immediately before he made his subclass 485 visa application on 13 January 2020 (that is, were any of them completed in the 6 month period between 12 July 2019 to 12 January 2020), and if so, whether any of them met the Australian study requirement as defined in r.1.15F.

20. From the applicant’s evidence, being the letters of completion and/or transcript certificates from his education provider that he provided to the Department, the Tribunal is satisfied that the applicant completed the following courses in Australia:

    ·Certificate IV in Business at West Australian Institute of Further Studies, completion date 10 September 2016 (as per applicant’s visa application); and

    ·Advanced Diploma of Engineering Technology at TAFE International WA (Southwest Metropolitan TAFE) – Electrical, completion date 5 July 2019 (as per letter of completion dated 4 March 2020).

21. The Tribunal is satisfied that the above dates are the dates that his education providers assessed him as having met all the academic requirements for the award of each of the qualifications. The Tribunal prefers the completion date of 5 July 2019 for the applicant’s Advanced Diploma as per the letter of completion issued by the applicant’s education provider as this was issued more recently that his academic transcript for the same qualification, which states that the completion date was 1 July 2019.

22. The Tribunal is further satisfied that the applicant has not completed any more recent Australian qualification prior to making his subclass 485 visa application.

23. The Tribunal must therefore find that the applicant did not satisfy the Australian study requirement in the period of 6 months immediately before he made his visa application on 13 January 2020, as his visa application was lodged approximately 6 months and 1 week after he completed his Advanced Diploma of Engineering Technology - Electrical. 

24. The applicant has not disputed this, and the Tribunal accepts that he did not lodge his visa application earlier initially because he was unaware of the strictness of cl.485.221 in relation to the time period applicable to the Australian study requirement. The Tribunal has some sympathy for the applicant, particularly given the length of his studies and residence in Australia, but has no power to overlook or waive the requirements of cl.485.221, which are very specific and contain no discretion to (for example) take into account a person’s exceptional or compassionate circumstances.

25. Accordingly, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application and therefore does not meet cl.485.221.

26. On the basis of the above findings, 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

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

    Alison Mercer
    Member