Islam (Migration)

[2023] AATA 2056

Islam (Migration) [2023] AATA 2056 (5 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD Rafiqul Islam

CASE NUMBER:  2108985

HOME AFFAIRS REFERENCE(S):          BCC2020/2032059

MEMBER:Katie Malyon

DATE:5 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 05 May 2023 at 3:29 pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – Course Completion Letter – visa application lodged outside of prescribed period – exceptional economic benefit – second highest occupation in demand nationally – Software and Applications Programmer – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.221

CASES
Davis v MICMSMA; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10

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 23 June 2021 to refuse to grant the applicant, Bangladeshi national Mr MD Rafiqul Islam, a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Mr Islam applied for the visa on 5 August 2020. Visa Class VC contains Subclass 485. 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).  

3. The delegate refused to grant the visa on the basis Mr Islam did not satisfy cl 485.221 of Schedule 2 to the Regulations because, having regard to the Completion Letter issued by the Western Sydney University (WSU), Mr Islam completed his Bachelor of Information and Communications Technology on 26 February 2019, which was more than 6 months immediately before the visa application was made on 5 August 2020.

4. On 12 April 2023, Mr Islam was invited to appear before the Tribunal on 2 May 2023 to give evidence and present arguments.  

   Documentation lodged prior to the hearing

5. Prior to the hearing, Mr Islam provided the Tribunal with a further copy of the Course Completion letter dated 15 April 2019 issued by WSU confirming that he met all course requirements as of 26 February 2019 and that his final results were published on 21 February 2019.  The letter also confirms that Mr Islam was enrolled as a full time student at WSU between 23 February 2015 and 17 February 2019.

6. Further, Mr Islam provided the Tribunal with a written statement in which he acknowledges the delegate’s reasons for refusing his Subclass 485 visa application.  He also explains that, at the time between completing his Bachelor of Information and Communications Technology at WSU on 26 February 2019 and lodging his Subclass 485 application on 5 August 2020, he was the holder of a Bridging A visa awaiting the outcome of a review by the Tribunal  (differently constituted) regarding his application for a further Subclass 500 visa.  Departmental records confirm that Mr Islam had applied to undertake a Graduate Diploma of Management at International College of Australia T/A Western Sydney College.  This visa application had been refused owing to the lack of evidence provided of Mr Islam’s genuine access to funds.  The differently constituted Tribunal set aside that decision on 24 June 2020 following provision by Mr Islam of extensive documentation and he was granted a Subclass 500 Student visa on 5 August 2020. 

7. In his statement lodged prior to the hearing, Mr Islam states that he did not lodge a Subclass 485 visa application within 6 months of having completed his Bachelor of Information and Communications Technology at WSU (that is, on or before 26 August 2019) as he was not the holder of a ‘suitable substantive visa’.  This was because he was awaiting the outcome of an earlier application to the Tribunal regarding refusal of his Subclass 500 Student visa to undertake a Graduate Diploma of Management.  The information about the need to hold a suitable substantive visa was based on information about Subclass 485 visa criteria outlined on the Department’s website at the time.  Further, information on the Department’s website stated that if his Student Subclass 500 visa was refused and the Tribunal remits that application back to the Department, then he would meet criteria to be able to apply for a Subclass 485 visa.  It was based on this information that, when the differently constituted Tribunal set aside the refusal of his Subclass 500 Student visa on 24 June 2020, he applied for his Subclass 485 visa.

   Hearing – 2 May 2023

8. Mr Islam appeared before the Tribunal on 2 May 2023 to provide evidence and present arguments. At the outset, the Tribunal acknowledged receipt of Mr Islam’s statement provided prior to the hearing. It noted that subparagraph 1229(4)(a) of Schedule 1 to the Regulations, which sets out provisions in relation to a valid visa application, makes provision for 4 different scenarios in relation to applicants applying for a Subclass 485 visa who hold different pieces at the time of application. Two of these provisions relate to holders of substantive visas[1] and one relates to matters where the Tribunal substitutes a decision not to revoke cancellation of an applicant’s Student visa in the 28 days before a Subclass 485 visa application is made.[2]  However, the Tribunal observed that subparagraph 1229(4)(a)(ii) relates to holders of a Bridging visa are who have held an eligible student visa during the period of 6 months ending immediately before the day on which the Subclass 485 visa application was made.

   [1] Subpara 1229(4)(a)(i) of Schedule 1 to the Regulations relates to holders of an eligible Student visa and subpara 1229(4)(a)(i) 3 relates to holders of a substantive visa who have held an eligible Student visa at any time in the period of 6 months ending immediately before the day on which the application for a Subclass 485 visa application is made

   [2] Subpara 1229(4)(a)(iv) of Schedule 1 to the Regulations relates to Applicants who have been notified that the Tribunal has set aside and submitted the Minister's decision not to revoke the cancellation of an applicant is eligible Student visa

9. The Tribunal discussed with Mr Islam his immigration history in Australia as confirmed by the Department’s Movement Records.  He acknowledged that he has held 4 Student visas since arriving in Australia on 8 July 2011.  His first Student visa had been granted to enable him to undertake a Diploma of Electronic Technology at TAFE NSW: however, he discontinued that course in June 2013.  Mr Islam then enrolled in and completed a Diploma of Information Technology at Insearch Limited T/A UTS College (UTS Insearch).  Subsequently, he commenced his Bachelor of Information and Communications Technology at WSU.  Relevantly, his third Student visa was granted on 14 March 2016 and ceased on 30 September 2017. 

10. Relevant to the circumstances of this case and, as noted above, para 1229(4)(ii) of Schedule 1 to the Regulations confirms that holders of a Bridging visa may apply for a Subclass 485 visa if they have held an eligible Student visa during the period of 6 months immediately before the day of the Subclass 485 visa application.  In this case, Mr Islam’s third Student visa expired on 30 September 2017 by which time he had not yet completed his Bachelor of Information and Communications Technology.  As such, he was not yet able to lodge a Subclass 485 visa application.  Rather, he continued his studies at WSU for his Bachelor degree as the holder of the Bridging A visa whilst awaiting the outcome of his decision to transition to undertake a Graduate Diploma of Management at Western Sydney College.  He did not seek an extension of his Subclass 573 visa to allow completion of his undergraduate studies at WSU: rather, he applied for another Student visa to enable him to transition to undertake studies in management and, during this time, he completed his Bachelor degree at WSU.  Mr Islam acknowledged that he did not, as confirmed in his response to a question in his Subclass 485 visa application, have the benefit of any professional advice about his immigration options or pathways to remain in Australia. 

11. In the circumstances, the Tribunal noted that evidence provided confirms that Mr Islam satisfied the Australian study requirement on 26 February 2019. As such, the Tribunal observed that it had no discretion and must affirm the delegate’s decision to refuse his Subclass 485 visa application because he did not, consistent with cl 485.221 of Schedule 2 to the Regulations, satisfied the Australian study requirement in the period of 6 months immediately before the day his Subclass 485 visa application was made on 5 August 2020.  Mr Islam acknowledge the Tribunal’s comments in this regard.       

12. The Tribunal noted that its only discretion in this matter was whether it was appropriate, in the circumstances of this case, to consider referring the matter to the Minister pursuant to

    
    

    s 351 of the Act.  Asked whether he was aware of the Tribunal’s powers in this regard, Mr Islam told the Tribunal that he had not taken immigration advice about immigration matters but that, following the Tribunal’s hearing, he would do so.  The Tribunal referred Mr Islam to the Department’s website for details in relation to the text of the Minister’s guidelines in relation to the Tribunal’s powers to refer a matter to the Minister.  It also recommended that he may wish to take professional advice from a competent registered migration agent or immigration lawyer. 

13. The Tribunal acknowledged that accompanying his Subclass 485 visa application Mr Islam had provided a favourable skill assessment from the Australian Computer Society (ACS) dated 26 April 2019 for the occupation of Software and Applications Programmer ANZSCO 261399.  The ACS’s favourable skill assessment acknowledges that it had assessed Mr Islam’s Diploma of Information Technology from UTS Insearch completed September 2014 as well as his Bachelor of Information and Communications Technology from WSU completed February 2019.  Asked about his employment in his nominated occupation, Mr Islam said that he has been working in the profession and recently completed a formal Professional Year.  As a consequence, he said he applied in late January to the ACS for an updated skill assessment to take account of his recent work experience as a Software and Applications Programmer.  He added that, based on information available on ACS’s website, it could be a couple of weeks before the results of that assessment are available.

14. Mr Islam told the Tribunal that he is currently working with IT company Nexus Australasia Pty Ltd T/A Zest Health Strategies and Zest Healthcare Communications (Nexus) which is a company that is part of the Ebos Group Limited (Ebos Group).  It is based in North Sydney and he is employed as a Web Developer.  Mr Islam added that, as part of the Ebos Group, Nexus specialises in providing software, data and reporting services in the health industry.  He has been working with Nexus since late November 2022 and, prior to this, he worked for 6 months with a small software company AmpliFLI Pty Ltd (AmpliFLI) which specialises in a range of IT programs for institutions in the education sector, including Catholic Schools NSW.  However, due to funding shortfalls in the industry sector, his employment with AmpliFLI lasted only for 6 months.  Prior his role with Amplify, Mr Islam said he had worked with a business known as Digital Carpentry Pty Ltd (Digital Carpentry) based in Pyrmont which provides IT services to large companies in the property and construction industry including Dexus.  The Tribunal acknowledged that the occupation of Software and Applications Programmer had been identified by in the most recent report from Jobs and Skills Australia as the second top occupation in demand nationally after Registered Nurses.[3] 

    [3] New Data on Top 20 Occupations in Demand | Ministers' Media Centre (dewr.gov.au)

15. Further, Mr Islam also told the Tribunal that last year he undertook studies with National Accreditation Authority for Translators and Interpreters Ltd (NAATI) and had passed a Credentialled Community Language Test in Bangla.  He explained it is his intention to lodge an Expression of Interest with Skill Select and apply for a Subclass 190 Skilled – Nominated visa should he be invited by the Minister to apply for such a visa. 

16. Having regard to oral evidence at the hearing, the Tribunal requested Mr Islam provide probative evidence of his employment in the nominated occupation of Software and Applications Programmer as well as his NAATI accredited qualifications for it to consider referring the matter to the Minister pursuant to s 351 of the Act. It discussed with Mr Islam the nature of documentation that might be provided to the Tribunal in support of its referral to the Minister to demonstrate his employment in the occupation of Software and Applications Programmer. It also recommended Mr Islam engage with the migration profession to seek advice regarding his evidence required to support a request for Ministerial intervention as well as implications for work rights in Australia pending the outcome of that request. In passing, the Tribunal noted that the recent High Court decision in Davis v MICMSMA: DCM20 v Secretary of Department of Home Affairs [2023] HCA 10 confirms that the Department will not, itself, consider whether the case meets the Ministerial guidelines but, rather, it will collate documentation to forward direct to the Minister to allow for the Minister’s personal consideration of the merits of the case.

17. In relation to his recently lodged application with the ACS, Mr Islam said that he had been required to provide a range of documents confirming his employment as a Software and Applications Programmer in support of the application.  He confirmed he would be able to provide copies of the documentation to the Tribunal promptly after the hearing. 

18. Shortly after the hearing, Mr Islam provided a range of documentation for consideration by the Tribunal regarding the possibility of referring this matter to the Minister.  Documentation provided is outlined below.

19. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant is seeking to satisfy criteria for a Subclass 485 visa in the Graduate Work stream which includes cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These provisions require that:

    1)the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (emphasis added): cl 485.221; and,

    2)each degree, diploma or trade qualification used to satisfy the ‘Australian study requirement’ must be closely related to the applicant’s nominated skilled occupation: cl 485.222.

21. The issue in the present case is whether Mr Islam meets both of these requirements.

    Does the applicant meet the Australian study requirement?

22. 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;

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

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

    ·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.

23. The terms ‘degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 1.03, 1.15F and 2.26AC(6) as well as cl 485.111).  The word ‘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.

24. As noted above, in support of his Subclass 485 application, Mr Islam provided the Department with evidence that he undertook a Bachelor of Information and Communications Technology at WSU in the period 23 February 2015 to 17 February 2019.  He provided a copy of WSU’s Course Completion Letter dated 15 April 2019 confirming that Mr Islam has “satisfactorily met all course requirements as of 26 February 2019”.  He also provided a copy of his Academic Transcript dated 15 April 2019 confirming subjects undertaken.  The Tribunal notes in passing that it has independently confirmed with WSU the probity of WSU’s completion letter dated 15 April 2019 lodged with both the Department and the Tribunal. 

25. Based on available evidence, the Tribunal is satisfied that Mr Islam completed a Bachelor of Information and Communications Technology at WSU on 26 February 2019.  His Bachelor degree from WSU is a registered course, it was completed in a total of at least 16 calendar months as a result of at least 2 years academic study and, further, he undertook the course while in Australia is the holder of visas authorising him to study.  WSU’s Completion Letter confirms that Mr Islam’s Bachelor of Information and Communications Technology course was conducted in English.  Accordingly, the Tribunal finds that Mr Islam satisfies the Australian study requirement.

26. Having regard to available evidence, the Tribunal finds that Mr Islam satisfied the Australian study requirement on 26 February 2019 and, as such, he had until 26 August 2019 to lodge his Subclass 485 visa application in the Graduate Work stream. As he did not lodge his Subclass 485 visa application until 5 August 2020, the Tribunal finds that Mr Islam lodged his application after the 6 months required by cl 482.221 of Schedule 2 to the Regulations.

27. Accordingly, the Tribunal finds that Mr Islam does not meet cl 482.221 of Schedule 2 to the Regulations.

28. On the basis of the above finding, Mr Islam does not satisfy the criteria for the grant of a Subclass 485 visa.  The delegate’s decision under review must be affirmed.

    Is this an appropriate matter to refer to the Minister?

29. Having found that the delegate’s decision must be affirmed because Mr Islam does not meet cl 485.221 of Schedule 2 of the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case for it to refer to the Minister.

30. 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 consistent with s 351 of the Act.

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

32. The Minister has issued Guidelines explaining the circumstances in which they may wish to consider exercising the public interest powers under s 351 of the Act. The Guidelines state that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal pursuant to cl 8 of the Guidelines and which exhibit one or more unique or exceptional circumstances (emphasis added) as set out in cl 4 of the Ministerial Guidelines.  The circumstances set out in cl 4 of the Guidelines which may be unique or exceptional in this case include, relevantly:

    §exceptional economic … cultural or other benefit that would result from the person being permitted to remain in Australia.

1. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. The Minister has indicated in the Guidelines circumstances where it would be inappropriate to bring a matter to their attention, none of which apply in this case.

2. During the hearing held on 2 May 2023, the Tribunal explained the process of referring a case to the Minister and the nature of the probative evidence required to support the Tribunal’s consideration of this issue.  As noted above, it also recommended he obtain professional advice regarding the impact of referral on his work rights in Australia.  

3. After the hearing, Mr Islam formally requested the Tribunal refer this matter to the Minister pursuant to s 351 of the Act. In support of his request, Mr Islam has provided the following information to address the exceptional economic … cultural or other benefit that would result from him being permitted to remain in Australia:

   1)Mr Islam’s updated resume;

   2)receipt issued by ACS dated 29 January 2023 confirming payment for assessment of Mr Islam’s Post Australian Study;

   3)in relation to Mr Islam’s current employment with Nexus:

   a)    signed employment agreement from EBOS in relation to his full-time employment with Nexus dated 16 November 2022 for the position of Web Developer at a salary of $100,000 per annum plus superannuation;

   b)    signed letter from Sophia Maioha-Mackey, HR Coordinator with the Ebos Group dated 4 May 2023 confirming that Mr Islam has been working with Nexus since 28 November 2022 and that he is employed as a Web Developer on a permanent full-time basis 38 hours per week.  Ms Maioha-Mackey also sets out details of Mr Islam’s main duties as a Web Developer with Nexus;

   c)    monthly payslips for the period 1 December 2022 - 30 April 2023;

   4).in relation to Mr Islam’s employment with AmpliFLI:

   a)    signed contract of employment letter dated 19 April 2022 for the position of Senior Developer at a salary of $110,000 per annum plus superannuation;

   b)    signed letter from Shane Singh, Director, Head of Engineering confirming Mr Islam’s employment in the period 26 April – 28 October 2022 as a Developer and the nature of his duties;

   c)    pay slips for the period from 25 April – 6 May 2022 and 17 – 28 October 2022; 

   d)    CBA bank statement confirming salary paid 9 May 2021 and 28 November 2022;

   5)in relation to Mr Islam’s employment with Digital Carpenter:

   a)    signed letter of engagement with Digital Carpenter dated 30 September 2021 for the position of full-time Junior Developer at a salary of $70,000 per annum plus superannuation;

   b)    signed letter from Chris Carpenter, Director of Digital Carpenter dated 21 February 2023 confirming Mr Islam’s employment in the period 11 October 2021 to 14 April 2022 as a Junior Developer and the nature of his duties as a Junior Developer

   c)    pay slips for the period from 11 – 31 October 2021 and 1 – 22 April 2022;  

   d)    CBA bank statement confirming salary paid 28 October 2021 and 18 April 2022;

   6)Pearson PTE Academic Score Report for Mr Islam’s English language test undertaken 11 February 2023 confirming he scored Listening 90, Reading 85, Speaking 87, Writing 88 with an Overall Score of 89; and,

   7)letter from NAATI dated 18 July 2022 confirming Mr Islam has been successful in passing a Credential Community Language Test in Bangla.

4. Having regard to the fact that Jobs and Skills Australia has identified Mr Islam’s nominated occupation of Software and Applications Programmer as the second highest occupation in demand nationally as well as the documentation outlined above in para [35], the Tribunal will refer this case to the Minister pursuant to s 351 of the Act. In passing, the Tribunal observes that given the costs to Mr Islam and vicariously to the Australian community by virtue of dealing with any possible appeal from this decision to the Federal Circuit and Family Court of Australia, it may well be a consideration for the Minister to consider documentation lodged in support of Mr Islam’s request that this matter be referred to the Minister: however, that is entirely a matter for the Minister.

5. For the reasons outlined above the Tribunal will forward to the Department the documentation referred to above in para [35] to demonstrate that Mr Islam’s case may meet the unique or exceptional circumstances as set out in the Minister’s Guidelines.  Mr Islam will no doubt forward to the Department the updated favourable skill assessment from the ACS when it is issued to him. 

   DECISION

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

   Katie Malyon

   
   Member