Kumar (Migration)

[2020] AATA 5542

Kumar (Migration) [2020] AATA 5542 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amit Kumar

CASE NUMBER:  2002573

HOME AFFAIRS REFERENCE(S):          BCC2019/4300573

MEMBER:Jennifer Cripps Watts

DATE:6 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.213 of Schedule 2 to the Regulations

Statement made on 6 November 2020 at 12:50pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – applicant had previously held a Subclass 476 visa – applicant claimed to have never been to Australia previously – duplicate movements record for the applicant’s name – two visa holders with the same name and birthdate – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.211, 485.213

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 (the delegate) on 24 January 2020 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 29 August 2019. 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 because the applicant did not satisfy cl.485.211 of Schedule 2 to the Regulations because the delegate found that the applicant had previously held a Subclass 476 visa.

4. On 10 February 2020, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.

5. The Tribunal considered additional evidence provided by the applicant and was able to decide the review in the applicant’s favour on the basis of the material before it.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case, which is the same determinative issue on which the visa was refused, is whether the applicant has previously held a Subclass 476 or 485 visa granted on the basis that they satisfied the primary criteria for the grant of the visa.  

8. To satisfy cl.485.211 of Schedule 2 to the Regulations, it is required that:

   485.211

   The applicant:

   (a) has not previously held a Subclass 476 (Skilled - Recognised Graduate) visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa; and

   (b) has not previously held a Subclass 485 visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.

9. The visa was refused on the basis that Departmental records (as referred to in the delegate’s decision) indicate Amit Kumar, born 1990, was granted and previously held a Subclass 476 visa from 2 May 2014 until 5 January 2016 as the primary visa holder. 

10. The Tribunal invited the applicant to provide additional information in support of his review application and he provided a statement and attachments claiming that he has never been to Australia, or applied for any other visas other than the student visa he held from 15 July 2017.  He provided copies of his current and previous passports.

11. After considering the submissions, it appeared possible that there may be more than one Amit Kumar with the same birthdate, and that they had both been included on the same Departmental movement record.  The Tribunal conducted its own search of Departmental records, including:

    a.Movement records

    b.ICSE record

    c.Subclass 485 visa application

    d.Subclass 476 visa application

12. The Departmental movement records indicate that Amit Kumar, born 1990, first arrived in Australia holding a Subclass 476 visa on 5 July 2014, entering on passport number Zxxx9276, and departed with the same passport on 16 August 2015.  The same movement record also indicates that Amit Kumar, born 1990, arrived in Australia on 15 July 2017, entering on passport number Pxxx6505 (issued on 8 June 2016) holding a Subclass 500 student visa.  And, that Amit Kumar, born 1990, applied for the Subclass 485 visa that is the subject of this review on 29 August 2019; a copy of his passport, number Pxxx6505, accompanied the application.

13. The Subclass 476 visa application contains an IELTS test for Amrit Kumar, with a photograph, indicating he took the test in Dubai on 5 December 2012; his candidate number is the passport number he subsequently entered Australia on, Zxxx9276.  His ICSE record indicates he studied engineering related degrees in the UAE, from 1 September 2008 to 20 June 2012, and in Leeds in England, from 24 September 2012 to 15 September 2013.  He was granted a Subclass 476 visa and arrived in Australia on 5 July 2014, then departed on 16 August 2015.

14. The Subclass 485 visa application for Amit Kumar contains a TOEFL iBT test, taken by Amit Kumar on 4 November 2016 in Chandigarh, India, with a photograph included and the ID recorded for him matches the passport he provided with his visa application, Pxxx6505.  His ICSE record indicates that he studied degrees in technology in India from 1 August 2009 to 31 October 2013, and data science in Australia from 24 July 2017 to 15 July 2019.

15. The names and birthdates are the same in all records referred to.  However, the photographs of the two men contained in their applications are, even to an untrained eye, almost certainly not the same person.  In addition, the two ICSE records referred to show Amrit Kumar, born 1990, studying different disciplines in two different countries at the same time; in UAE and England from 2008 to 2013 and in India from 2009 to 2013. 

16. Even though there is only one entry in the Departmental database for Amit Kumar (with the relevant birthdate of 1990), the Tribunal is satisfied that it is improbable, for the reasons given, that this is one person.  It is considered more likely that there has been an error in recording their movements together on the movement record, because they have the same name and birthdate. 

17. On the evidence, the Tribunal is satisfied that the applicant has not previously held a Subclass 476 or 485 visa.

18. Therefore, the applicant satisfies cl.485.211.

19. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    • cl.485.211 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Member