Ismath (Migration)

[2024] AATA 404

Ismath (Migration) [2024] AATA 404 (26 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mostafa Ashmith Ismath

REPRESENTATIVE:  Mr MOHAMMAD SHAHADAT HOSSAIN (MARN: 1799395)

CASE NUMBER:  2116323

HOME AFFAIRS REFERENCE(S):          BCC2021/1297811

MEMBER:Alan McMurran

DATE:26 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2024 at 12:19pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – courses completed within 6 months before visa application – visa application delayed by plans for further study – student enrolment terminated – impact of the COVID19 travel restrictions – applicant departed Australia prior to course completion – delay not caused by absence from Australia – extended concessional period – decision under review affirmed         

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, s 65
Migration Amendment (COVID-19 Concessions) Regulations 2020
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.231-485.235, 485.411; rr 1.03, 1.15, 2.26

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 9 November 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 24 June 2021. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include the criteria in Subdivision 485.23.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the applicant had not satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.

4. The applicant lodged this application for review on 10 November 2021.The applicant appeared before the Tribunal on Friday, 23 February 2024, to give evidence and present arguments.  

5. The applicant was represented in relation to the review. The representative also attended the hearing and made submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

8. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A).

   Does cl 485.231 apply to the applicant?

9. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A).

10. There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made.

11. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b).

12. The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

    The issue

13. As cl 485.231 applies to the applicant, the Tribunal must determine whether the applicant meets the requirements in cl 485.231.

14. The requirements are that the applicant must hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, and have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)).

15. Alternatively, the applicant may have satisfied the requirement in the 12 months immediately before the day the visa application was made, if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

    Does the applicant hold a specified qualification?

16. Clause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds a Bachelor of Information Technology and Systems which is a qualification specified in that instrument.

17. Therefore the applicant satisfies cl 485.231(1).

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

18. Clause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/03.

19. In this case, the applicant’s qualification was conferred or awarded by The Victorian Institute of Technology Pty Ltd which is an educational institution specified in that instrument.

20. Therefore the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

21. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

22. Alternatively, the applicant may meet the requirement in the 12 months immediately before the day the visa application was made, if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020, and ending on 19 September 2020.

23. 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.

24. ‘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).

25. ‘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, as specified in the relevant instrument.

26. The issue now concerns when the applicant ‘completed’ the study requirement relative to when he lodged the application.

    Completion of the course requirements

27. The available information provided by the course provider, The Victorian Institute of Technology Pty Ltd(“VIT”) and submitted by the applicant to the Department, shows the applicant completed the course requirements as determined by the VIT Board of Examiners, on 18 December 2020.

28. In his written and oral submissions to the Tribunal on 23 February 2024, the applicant has confirmed that he completed his registered course of study as stated by VIT on 18 December 2020 and which date he does not dispute.

29. The Tribunal finds therefore that 18 December 2020 was the completion date in relation to the applicant’s degree and when he was found to have met the academic requirements for its award.

30. The Tribunal further finds on the available information that:

    ·the applicant completed his degree, Bachelor of Information Technology and Systems (as defined: see reg 2.26AC(6));

    ·the qualification was as a result of a course(s) that was:

    ·a registered course (as defined: see reg 1.03);

    ·completed (as defined: see reg 1.15F(2) in a total of at least 16 calendar months;

    ·as a result of at least 2 academic years (as specified) study;

    ·for which all instruction was conducted in English;

    ·whilst holding a visa authorising study;

31. The remaining issue was whether the applicant had satisfied the Australian study requirement in the 6 months immediately before the day the application was made. Alternatively, whether the applicant was unable to apply within 6 months of having satisfied the Australian study requirement because he was outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

    Submissions

32. The applicant sought to explain the circumstances that prevented him from meeting the temporal requirement within the 6 month period, which commenced on 18 December 2020 and ended on 17 June 2021 (“relevant period”).

33. Firstly, he submitted that he had been mistaken as to the commencement date for the relevant period within which he could lodge the visa application. He explained that in about November or December 2020, he had made inquiries about enrolling for a Master’s degree in IT, as his Overseas Student Confirmation-of-Enrolment (C of E) did not expire officially until 5 September 2021. He said when he was informed about mid-January that he could not enrol in a further course, because the Master’s degree course was fully subscribed for that period, he “changed his mind” and decided he could work for 2 years on a post-graduate work visa instead. He found out about the visa “by word of mouth” and looked it up on the Internet. He did not seek professional advice. He said he set about obtaining necessary documents to support the visa application such as his Birth Certificate and a Police Check, as well as raising the funds for the application fee from his work at Woolworths.

34. Secondly, he explained that life during the pandemic was logistically challenging. He needed vaccination to continue working at Woolworths, and he was restricted in his movements “within my LGA”. He found it difficult and was affected mentally through anxiety and depression. He was unable to obtain medical help or migration assistance. He maintained however, that he always intended that he would lodge his application for the visa “by the end of June 2021”, which was his goal.

35. Thirdly, he stated that had he realised that calculation of the 6 month-date for lodgement had commenced on 18 December 2020, he would have brought forward his intended lodgment from the end of June, so as to meet the deadline. But no one provided any “warning” to him that time was running. He felt that the Department should have warned him when it advised him on 5 February 2021 of the cancellation of his C of E on 5 February 2021.

36. Fourthly, he submitted that time for lodgment of the visa should have commenced on 5 February 2021 when his student enrolment was terminated. If that had been the correct commencement date for lodgment, then he was within the 6 month window on 24 June 2021. The advice he received by email from VIT on 5 February 2021, a copy of which he submitted for consideration, informed him that as he had “successfully completed” his Bachelor degree “before the proposed end date”, the CoE was “cancelled” and the Department had been informed accordingly.

37. It is entirely understandable that the applicant thought when reading the University notice, that the start date for lodging his further visa application was 5 February 2021. Unfortunately, he did not seek advice to verify if his understanding was correct.

38. Fifthly, the applicant’s agent submitted that sub-clause 485.231(3)(b) applied, which operates to extend the period for lodgment from 6 months to 12 months. It was submitted that this concessional period applied because the applicant had travelled to Bangladesh to visit family in a two week period from 19 February 2020 until 20 March 2020. It was argued that the provision applies to the applicant and which provision the delegate had not considered.

39. At the hearing, the Tribunal explained that the evidence shows the applicant had not been outside Australia during the lodgement window from 18 December 2020 until 17 June 2021 and appeared not to have been prevented from making an application because of any absence outside the country, and constrained because of such absence due to COVID. The concessional period had ended on 19 September 2020 when the applicant was onshore and before he had completed his degree, and before the visa lodgment period had commenced.

40. The applicant was asked if he wanted to respond. He maintained that the pandemic and effect of COVID restrictions had played an important part in him missing the deadline for lodgment. He submitted that although he had made a “mistake” as to the timing and was misled by the cancellation of his student enrolment period, he should still have the benefit of the concessional period.

    Summary

41. It is not in dispute that the applicant completed his degree course on 18 December 2020. It is also not disputed that the 6-month lodgement period ended on 17 June 2021.

42. The Tribunal has considered the submission that the concessional period be applied to the applicant’s circumstances as per cl 485.231(3)(b).In support of that submission, the applicant noted on 22 January 2024 as follows:

    “I was in Bangladesh from 20/02/2020 to 15/03/2020. Also I have received an email from my university regarding my CoE cancellation on 05/02/2021 which was valid until 05/09/2021.
    I was not sure that I am eligible to apply for Subclass 485 while I have an active CoE which was confirmed as cancelled on 05/02/2021. That made me think, I have 6 months from 05/02/2021 to lodge a subclass 485 application.
    
    

    In addition to this I would also like to break this down in more detail. I completed my bachelor degree on 18/12/2020 and at that time I called my college for a master degree program as I had duration left in my coe and also had visa until November 2021 but due to christmas break right after the completion letter date my college got closed. After they reopened it was 18/01/2021. Then again I have called my college on 18/01/2021 for the master degree program but they said they don't have enough seats for the feb '2021 intake master degree program and advised me to try next semester. Then I couldn't get into the master degree program and they sent me the coe cancellation email. I received that email on 05/02/2021 and I thought the sixth month period for applying for 485 visa starts from 05/02/2021. The reason I made this error is because there was a lot going on at that time due to huge covid-19 restrictions all over Australia and my mental health was not that good. The government has restricted us to move more than 5metre from my house and it was very difficult for me get an income exactly at that time and i couldn't bring money from overseas as banks were closed and my father was also restricted to go out from his house, for him to send me money here to survive and the government assistance also came a lot later. No one is above the government and when these covid-19 restrictions were imposed on us things were not going good in every way. When I sum up everything covid-19 restrictions and everything going around the world were also another reason I unintentionally made this error for applying for my 485 visa on time.”

43. The Explanatory Memorandum to the Migration Amendment (COVID-19 Concessions) Regulations 2020[1] notes that the purpose of the amendment was to “assist certain temporary skilled, business and protection visa holders, particularly those on a pathway to permanent residence, who have been disadvantaged by circumstances beyond their control related to the COVID-19 pandemic, such as border closures, restrictions imposed on businesses and the general economic downturn.[2]” It explains that the extended period to meet the Australian study requirement from 6 to 12 months was to assist applicants “prevented from returning to Australia due to COVID-19 travel restrictions”.

    [1] F2020L1181

    [2] Explanatory Statement, pp.1 and 6.

44. The explanation states that the amendments “apply to visa applications made on or after 19 September 2020[3] with the following exceptions:

    amendments to cls 485.411(1) and (2), prevented from returning to Australia due to        COVID-19 travel restrictions..”.

    The memorandum further explains:

    “In addition to amending application requirements, the Amending Regulations amend visa criteria which require applicants in both the Graduate Work stream and the Post-Study Work stream to have satisfied the Australian study requirement in the 6 months immediately before the day the application was made. The amendments qualify these requirements so that the Australian study requirement can be satisfied within 12 months immediately preceding the application if the applicant was outside Australia for all or part of the period commencing 1 February 2020 and ending on 19 September 2020; and the Minster is satisfied the applicant was unable to apply within six months of satisfying the Australian study requirement because of that absence from Australia.[4] These amendments ensure applicants who satisfied the Australian study requirement in late 2019 or early 2020 are able to satisfy this visa criteria for the stream in which the application is made if they apply from outside Australia during the specified period and were affected by COVID-19 travel restrictions.[5]” (underlining added).

    [3] cls 9101(1) and 9102(1) of sch 13 to the Regulations, inserted by item 39, pt 6 of sch 1 to the Amending Regulations.

    [4] cls 485.221 and 485.231 repealed and substituted by items 36 and 37, pt 5 of sch 1 to the Amending Regulations.

    [5] Explanatory Statement, p.28.

45. The Tribunal finds that as submitted, the applicant simply made a mistake as to the timing, believing the relevant period had not commenced until after his student enrolment period had ended on 5 February 2021.

46. The Tribunal has listened carefully to the applicant’s explanation and submissions and has some considerable empathy for his predicament. He missed the deadline for lodgement by only 1 week. He acknowledged that if he had he sought advice before lodgement, he would have become aware of his mistake. As it was, he did not seek advice until after he received the department’s decision. It had always been his intention to lodge his application “at the end of June”, which is what he did.

47. On the facts in this instance, the Tribunal finds that the applicant was overseas visiting family from 20 February 2020 to 15 March 2020. The applicant completed his degree on 18 December 2020, and was not prevented from doing so due to COVID-19 travel restrictions or from returning to Australia, and has not asserted that he suffered any delays beyond his control. He confirmed in evidence that he just returned to Australia in time in March, before the border closed. He was not outside Australia in the relevant period. The Tribunal finds accordingly that the applicant is not a person entitled to the benefit of the extended concessional period due to events beyond his control related to the pandemic. The Tribunal finds it is not satisfied on the available information and the facts as presented  that the applicant was unable to apply within the relevant period so as to satisfy the Australian study requirement.   

1. In summary, the Tribunal finds it is satisfied that the applicant was not prevented from meeting the temporal requirement due to any absence from Australia, or delay in returning from overseas, or due to COVID-19, but rather due to a simple mistake and misunderstanding on his part as to when the relevant period had commenced.

2. The mistake was understandable and has been explained, but the Tribunal has no discretion to avoid the mandated requirement.

3. The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application. Further, the applicant  was able to apply within 6 months and was not delayed in doing so because he was outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020. He therefore does not have the benefit of the extended concessional period provided for in cl 485.231(3)(b).

4. Therefore the applicant does not satisfy cl 485.231(3).

   Conclusion

5. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. Therefore the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

   DECISION

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

   Alan McMurran
   Member