Kumarage (Migration)

[2024] AATA 576

Kumarage (Migration) [2024] AATA 576 (22 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kumaragewattage Hashini Minoli Kumarage

REPRESENTATIVE:  Mr Rasan T Selliah

CASE NUMBER:  2119726

HOME AFFAIRS REFERENCE(S):          BCC2021/469545

MEMBER:Karen McNamara

DATE:22 March 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 22 March 2024 at 2:33pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Business (Accounting) – course completion date – more than 6 months before visa application date – relied on incorrect advice from a relative – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 360
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231

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 13 December 2021, to refuse to grant Ms Kumaragewattage Hashini Minoli Kumarage (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 29 March 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. Information before the Tribunal shows that on 13 December 2021, the delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant’s qualification Bachelor of Business (Accounting) can be used to satisfy the Australian study requirement, as the qualification was completed more than 6 months ending immediately before the day the application was made.

4. The applicant lodged an application for review with the Tribunal on 22 December 2021. The application was accompanied by a copy of the delegate’s decision.

5. On 5 February 2024, the Tribunal invited the applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient/representative) to appear before the Tribunal on 29 February 2024.

6. Additionally on the 5 February 2024, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient/representative), requesting the applicant to provide by 19 February 2024, supporting evidence to address the criteria of cl.485.231 as claimed in her application for a Temporary Graduate (Class VC) Temporary Graduate (Post Study Work) (Subclass 485) visa, lodged with the Department on 29 March 2021.

7. On 19 February 2024, the applicant’s authorised recipient/representative requested an extension of time for the applicant to respond to the Tribunal’s request to provide information. The Tribunal subsequently granted an extension of time to 22 February 2024.

8. On 20 February 2024, the applicant’s authorised recipient/representative submitted on behalf of the applicant the following:

   ·Submission by representative dated 21 February 2024

   ·Applicant’s graduation statement Western Sydney University dated 15 September 2020

   ·Course completion letter Western Sydney University dated 17 February 2021

   ·Completion letter Trinity Institute (Australia) dated 1 November 2022

9. On 29 February 2024, Ms Kumaragewattage Hashini Minoli Kumarage appeared before ethe Tribunal to give evidence and present arguments.

10. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

11. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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)).

14. The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

    Does cl 485.231 apply to the applicant?

15. 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).

16. 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. 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).

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

    Does the applicant hold a specified qualification?

18. 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.

19. For the purpose of cl.485.231(1) of Schedule 2 of the Regulations, IMMI 13/013 specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework (AQF) level seven or higher

    (a) Bachelor Degree;

    (b) Bachelor (Honours) Degree;

    (c) Masters by Coursework Degree;

    (d) Masters by Research Degree;

    (e) Masters (Extended) Degree and/or;

    (f) Doctoral Degree.

20. In this case, the applicant holds a Bachelor of Business (Accounting) degree which is a qualification specified in that instrument.

21. Therefore, the applicant satisfies cl.485.231(1).

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

22. Clause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister in an instrument in writing.

23. In this case, the applicant’s qualification was conferred by Western Sydney University, which is an educational institution specified in the relevant instrument.

24. Therefore, the applicant satisfies cl.485.231(2).

    Does the applicant meet the Australian study requirement?

25. 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 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.

26. 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.

27. ‘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.

28. At the time of application, the applicant declared she had completed a Bachelor of Business (Accounting) Degree, undertaken from 5 March 2018 to 15 September 2020. The applicant provided a letter of completion from Western Sydney University stating the applicant completed her studies on 8 July 2020. The delegate therefore on the information before them, found that the coursework was not completed in the last 6 months ending immediately before the day the application was made.

29. In submissions before the Tribunal, the representative submits that the applicant acted on the advice of a relative that her course completion date was 15 September 2020. The Tribunal notes that this is the date the qualification was conferred by the University and not the date the applicant completed the academic requirements of her course.

30. At the hearing the applicant told the Tribunal that that she had mistakenly relied on the advice of a relative and genuinely believed that the date of completion was when she graduated. The applicant told the Tribunal that at the time she completed her studies her parents in Sri Lanka became infected with COVID as to, did her aunt who she resided with in Sydney. The stress of her parents and aunt having COVID contributed to her not lodging her application on time.

31. The Tribunal discussed with the applicant that relevant to this matter, the completion date is the date when the University determined that she met the academic requirements. In this case advice from the University shows 11 July 2020 is the date on which her results were finalised by the University.

32. Whilst the Tribunal is sympathetic to the applicant’s position, this is not a matter in which the legislation provides discretion. The Tribunal does not have any discretion to waive the requirement that the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made.

33. Based on available evidence, the Tribunal is satisfied that the applicant completed a Bachelor of Business (Accounting) degree from Western Sydney University on 11 July 2020. Her Bachelor of Business (Accounting) is a registered course. The course was completed in a total of at least 16 calendar months as a result of at least 2 years academic study and the course was conducted in English. The course was conducted in Australia and the applicant held a visa permitting the relevant study during this period. Accordingly, the Tribunal finds that the applicant satisfies the Australian study requirement.

34. Having regard to available evidence, the Tribunal finds that the applicant satisfied the Australian study requirement on 11 July 2020 and, as such, she had until 10 January 2021 to lodge her Subclass 485 visa application in the Post-Study Work. However, the applicant following the completion of her course, lodged her application on 29 March 2021. The Tribunal therefore finds that the applicant lodged her application after the 6 month requirement by cl 485.231(3) of Schedule 2 to the Regulations.

35. Because the applicant applied for the visa over six months after the completion of her Bachelor of Business (Accounting) degree, the Tribunal is not satisfied that the applicant met the Australian study requirement in the 6 months ending immediately before the day the application was made.

36. The Tribunal therefore finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

37. Accordingly, cl. 485.231(3) is not met.

38. 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.

    Request for referral to the Minister

39. The Tribunal has no discretion to waive the specific requirements in cl.485.231 which prescribe the only ways in which that clause can be met. Nor does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion in relation to the merits of this case.

40. In submissions before the Tribunal and at the hearing, the applicant’s representative requested the Tribunal to consider referring the case to the Department for consideration by the Minister pursuant to s.351. Under s.351 of the Act, 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.

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

42. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which exhibit one or more unique or exceptional circumstances.

43. The circumstances which the applicant claims to be unique or exceptional in this case include:

    ·Compelling and compassionate grounds

    ·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

    Is this an appropriate case to refer to the Minister?

44. The Tribunal has had regard to the circumstances of the applicant. The applicant acknowledges and accept that the Tribunal does not have the authority to set aside the Department’s decision to refuse the applicant’s visa application.

45. The applicant claims that the effect of the COVID lockdowns and her concern for her family suffering from COVID, contributed to circumstances beyond her control resulting in her being unable to lodge her application within the specified time. Additionally, the applicant seeks to rely on future employment as an accountant working for relatives in a regional area.

46. The Tribunal has carefully considered this request, however, notes on the evidence provided by the applicant at the hearing that she is currently working part time as a shift supervisor for a fast-food chain in Western Sydney. Any accounting work previously undertaken by the applicant, was conducted remotely via online, for relatives that operate a mechanical workshop on the mid north coast NSW. There is no persuasive evidence before the Tribunal to support the applicant’s intention to reside and work in a regional area, nor that she will work in her studied profession of accountant. The Tribunal has also perused the Australian Government Jobs and Skills Australia website [1] to ascertain the current state of the market in the field of accounting. The Tribunal notes the 2023 Skills Priority List notes there is no shortage of Accountant (General) ANZSCO 221111 in NSW and nationally (except for Northern Territory).

    [1] (accessed 22 March 2024)

47. Additionally, whilst the applicant claims her parents and aunt suffering from COVID contributed to her being unable to lodge her application within the specified timeframe, the Tribunal notes that the applicant in evidence before the Tribunal, listened to the advice of a relative as to what constituted the completion date of her studies. It is the applicant’s responsibility to inform herself with correct information which is available on numerous websites including the Department of Home Affairs website.

48. The Tribunal has considered whether the circumstances the applicant as outlined regarding her claims for Ministerial intervention, warrant referral of this matter to the Minister. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.

49. However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individual concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia.

50. In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the Minister’s Guidelines on Ministerial Powers. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

51. The Tribunal acknowledges that there are some compassionate factors in this case in so far as the applicant to her detriment relied on incorrect advice from a relative during a time she was concerned for the health of her parents in Sri Lanka. However, having regard to all the evidence before it, the Tribunal is not persuaded on balance, that it should exercise its discretion to refer this matter to the Minister under section 351 of the Act. Accordingly, the Tribunal has decided not to refer the matter to the Minister.

52. The Tribunal notes that the applicant can still make a request directly to the Minister if she believes there are unique or exceptional circumstances in her case which would warrant Ministerial intervention.

    DECISION

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

    Karen McNamara
    Member