Hossain (Migration)

[2019] AATA 3696

Hossain (Migration) [2019] AATA 3696 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Farhad Hossain
Mrs Asia Khatun
Miss Fariha Melissa Muntaha

CASE NUMBER:  1730544

HOME AFFAIRS REFERENCE(S):           BCC2017/3578418

MEMBER:Jennifer Cripps Watts

DATE:25 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2019 at 12:57pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – qualification related to nominated occupation – course not related – English language proficiency – PTE test provided – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000, s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.221, 485.222

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 and Border Protection (the delegate) on 15 November 2017 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 29 September 2017. 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. On 4 December 2017, the applicants applied for review of the refusal of their Subclass 485 visas which they indicated had been refused on 15 November 2017.

4. On 16 April 2019, the Tribunal sent the applicants a written invitation to attend a hearing scheduled on 7 June 2019.  The applicant responded to the hearing invitation, signed and dated 17 April 2019, indicating that he would not attend the hearing and neither would the secondary applicants or his migration agent.  The Tribunal sought clarification and inquired whether the applicants wished to withdraw the review application.  A response was received from the migration agent confirming that they would not be attending the hearing, that they did not wish to withdraw the application and that documents would be provided in due course.  No reason was given why the applicants would not wish to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The only document that has been provided by the applicant is a Pearson Test of English Academic score (PTE test score) report for a test taken on 25 January 2016.

5. The Tribunal is satisfied that the applicants were properly invited to attend their hearing and, in declining the invitation and confirming they would not attend, they have consented to the Tribunal deciding the review on the evidence before it.

6. The applicants were represented in relation to the review by their registered migration agent, Ms Yi Zhou, Migration Agent Registration Number 1794845.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 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 preceding 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.

9. The Tribunal has reviewed the Department file and notes that the applicant provided the online generated application form (for the 485 visas), dated 29 September 2017.  There are no other documents on the Department file that have been provided by the applicant.

10. The issue on review, that is, the reason the visa was refused by the delegate, was because they were not satisfied that the applicant met cl.485.222 of Schedule 2 to the Regulations because the applicant’s qualification/s was not considered to be closely related to the nominated occupation of Engineering Technologist.

11. When the Tribunal was preparing for the hearing, another issue appeared to arise on the review.  The applicant had not provided evidence of satisfying the English language requirement at the time of application because, although claiming in the application he satisfied the English language requirement, he had provided no supporting documentary evidence with his visa application of having satisfactorily done an English test in the three years prior to the application, as required by cl.485.212.  On 10 May 2019, the applicant provided the Tribunal with a PTE test score report indicating he had taken and passed an English test on 5 March 2019, outside the relevant timeframe  at the time of application.

12. On 5 June 2019, the Tribunal wrote to the applicant, complying with its statutory obligations under s.359A of the Act, particularising the issues relating to the required English language test, in his case a PTE.  He was informed that it is specified in the relevant instrument, for a PTE test, that he must have a minimum overall score of 50, with a minimum score of 36 in each of the four test components of listening, reading, speaking and writing.  In response, the applicant provided a PTE test score report indicating he had satisfied the requirements, within the relevant timeframe, the 3 years before the visa application, as specified in the relevant instrument:  cl.485.212(a).  He does not hold a passport from one of the exempt countries as specified in a relevant instrument:  cl.485.212(b).

13. The applicant lodged his online visa application on 29 September 2017.  In response to the s.359A letter he provided a PTE test score indicating he had satisfied the English language requirements on 25 January 2016, which is within the 3 years before the visa application.

14. The Tribunal is satisfied that the applicant meets cl.485.212.

    Documentary evidence

15. The applicant has provided the Tribunal with additional documents on 10 May 2019.  They have been considered and include the following:

    a.The review application form dated 15 November 2017

    b.A response to the Tribunal’s hearing invitation, signed and dated 17 April 2019, indicating that none of the applicants would be attending the hearing

    c.An email from the applicants’ migration agent, dated 3 May 2019, confirming that the applicants will not attend the hearing and that they will provide additional documents

    d.Written confirmation from the University of Western Sydney that the applicant completed a Master of Engineering (Telecommunication), dated 16 April 2014

    e.Written confirmation from the University of Wollongong that the applicant completed a Master of Engineering Studies Electrical Engineering, dated 21 July 2011

    f.Academic transcript from the Holmes Institute indicating that the applicant commenced a Master of Business Administration on 21 July 2014 and completed it on 10 July 2017

    g.Two PTE test score reports, one taken on 25 January 2016, valid to 25 January 2018, with an overall score of 62 and with individual scores of no less than 60 in the four components of listening, reading, speaking, and writing; and one taken on 5 March 2019.

16. The Tribunal has reviewed his visa refusal starting with whether he meets the Australian study requirement (cl.485.221) and, if he does, whether the study is closely related to the occupation he nominated in his 2017 visa application, Engineering Technologist (cl.485.222).  This occupation is included in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) in Unit Group 2339 Other Engineering Professional which indicates that most occupations in the unit group are Skill Level 1, a level of skill commensurate with a bachelor or higher degree.  It is not in dispute that the applicant’s qualification/s are at Skill Level 1.

17. The Tribunal has had regard to a Provider Registration and International Student Management System (PRISMS) record for the applicant to confirm the dates he studied the courses for which he has provided documentary evidence.  The evidence he provided relating to his completed qualifications is essentially consistent with the PRISMS record.

    Does the applicant meet the Australian study requirement?

18. 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:

    ·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.

19. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.1.15F(2)). 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) that specifies that 2 academic years is at least a total of 92 weeks.

20. Qualifications may be combined to meet the Australian study requirement, providing one of them was completed in the 6 months immediately preceding the date of the visa application.

21. Relevantly, the Tribunal accepts that the applicant has completed a Master of Engineering Studies (Electrical Engineering) at Wollongong University in 2011; and a Master of Engineering (Telecommunication) at the University of Western Sydney (UWS) in 2014.  The applicant’s most recent qualification, completed in the 6 months immediately preceding the date of the visa application, is a Master of Business Administration, commenced on 21 July 2014 and completed on 13 March 2017, at the Holmes Institute. 

22. The Tribunal has had regard to information provided by the applicant and to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).  The Master of Business Administration at the Holmes Institute, according to the CRICOS, is registered with a duration of 78 weeks.  As this is short of the required duration of at least 92 weeks, the Tribunal will consider whether the applicant meets the Australian study requirement by combining his two most recent degrees, from the Holmes Institute and the University of Western Sydney (which changed its name in 2015 to Western Sydney University (WSU)).  The CRICOS indicates that the Master of Engineering at WSU is registered with a duration of 104 weeks.

23. The Tribunal is satisfied that the qualifications were registered courses which were completed in a total of at least 16 calendar months as a result of at least 2 academic years study, for which all instruction was conducted in English and that the applicant completed the qualifications while holding a visa authorising study.

24. The most recent qualification was completed on 10 July 2017.  The visa application that is the subject of this review was lodged on 29 September 2017.

25. For these reasons, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

26. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 17/072. 

27. In this case, the applicant nominated the occupation of Engineering Technologist which is a skilled occupation specified in IMMI 17/072, ANZSCO code 233914, assessing authority Engineers Australia.

28. Unit Group 2339 includes ‘engineering professionals not elsewhere classified’.  Engineering Technologist (233914) describes a person carrying on the occupation as someone who:

    ‘Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects.’

29. The applicant was invited to attend a hearing, but declined, and to provide any additional information he wished to be considered on the review.  He has provided no information addressing how he says his qualification is closely related to the nominated occupation.  The Tribunal has made its own assessment on the relevant information before it.

30. To satisfy the requirement that the qualifications are closely related to the nominated occupation, each qualification individually must be closely related, of which all or a substantial proportion of the conferred or acquired skills from that qualification are as described in the ANZSCO.

31. The applicant has provided an academic transcript from the Holmes Institute, issued on 24 August 2017, for his most recent qualification, Master of Business Administration.  The study units which have conferred skills for the award of the degree are focused on areas including accounting and economics for business, marketing, management, strategy, global and international business, statistics and research, business law, finance and international trade and enterprise. 

32. While there is no list of specific duties or tasks performed by an Engineering Technologist in the ANZSCO, the description, in the Tribunal’s view, indicates it to be an occupation where a qualified engineer would analyse, modify and apply them in testing and implementing engineering projects.  In the Tribunal’s view it is a highly technical function and not one that substantially requires business management skills.  The Tribunal has considered the evidence provided by the applicant and is not satisfied that the skills acquired from the Master of Business Administration, which is a qualification that could be useful or complementary to a broad range of occupations, is closely related to the nominated occupation of Engineering Specialist. 

33. If, for example, the applicant had applied for the visa on the basis of having completed his Master of Engineering at WSU, in the 6 months preceding the application, a course that is registered for 104 weeks and appears to clearly meet the description in the ANZSCO, he may have been granted the visa on that basis.  However, because the most recent qualification completed in the last 6 months is not closely related, the applicant cannot meet the closely related requirement and it is unnecessary for the Tribunal to assess the Master of Engineering from WSU because it was not completed in the 6 months immediately preceding the visa application.  

34. As the applicant’s qualification is not closely related to the nominated skilled occupation, the applicant does not cl.485.222.

    Secondary applicants

35. Secondary applicants must meet cl.485.311.  They must be a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria.  There is no information before the Tribunal to indicate the secondary applicants do not remain members of the applicant’s family unit.  As the Tribunal has affirmed the decision to refuse the applicant’s visa, it must also affirm the decision to refuse the visas for the members of his family unit who made a combined application with him.

36. 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

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

    Jennifer Cripps Watts
    Member