Mehmood (Migration)

[2021] AATA 1818

Mehmood (Migration) [2021] AATA 1818 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asad Mehmood

CASE NUMBER:  1906818

HOME AFFAIRS REFERENCE(S):          BCC2018/5376907

MEMBER:Michelle East

DATE:28 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 28 April 2021 at 1:14pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Chef – Australian study requirement – courses closely related to the nominated skilled occupation – course immediately preceding the visa application not completed – decision under review affirmed         

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; r 1.15

CASES

Hasran v MIAC [2010] FCAFC 40

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 7 March 2019 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 30 November 2018. 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.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to his nominated occupation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 cl.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 before 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.

   Does the applicant meet the Australian study requirement?

6. 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.

7. ‘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, 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 (IMMI 09/040).

8. The applicant provided evidence to the Department of the following qualifications:

   -Certificate IV in Training and Assessment

   -Diploma of Hospitality

   -Advanced Diploma of Work Health and Safety (Business Services)

   -Advanced Diploma of Management

9. In his application to the Department the applicant stated his nominated occupation was a ‘Chef’ and he had obtained a Skills Assessment on 30 November 2018 from Trades Recognition Australia.  The applicant stated the following as his Australian qualifications:

   -Diploma of Management, Kingston Training, 3.2.10 – 4.2.11

   -Cert IV in Occupational Health and Safety, Kingston College, 3.3.11-6.10.12

   -Diploma of Occupational Health and Safety, AIWT, 2.11.12 – 3.6.13

   -Cert IV in Training and Assessment, AIWT, 6.7.13 – 4.10.14

   -Advanced Diploma of Management, Kingston College, 8.11.14 – 4.6.15

   -Advanced Diploma of Work Health and Safety, AIWT, 6.7.15 – 3.7.16

   -Diploma of Hospitality, Stanley College, 1.8.16 – 28.7.17

   -Advanced Diploma of Business, Stanley College, 9.10.17-5.10.18

10. The requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study, that is, at least 92 weeks consistent with the relevant instrument in the 6 months immediately preceding the date of the visa application.  The Tribunal therefore requested evidence of the applicant’s completion of the Advanced Diploma of Business which he submitted he undertook at Stanley College from 9.10.17 – 5.10.18.

11. On 9 April 2021 the Tribunal wrote to the applicant pursuant to section 359A of the Act with particulars of the following information that would be the reason or part of the reason for affirming the decision under review:

    Information before the Tribunal indicates that you did not complete your Advanced Diploma of Business at Stanley College on 5 October 2018 and that your enrolment in the course was cancelled

12. The applicant was invited to respond by 27 April 2021.  A review of the Tribunal’s records demonstrates that the applicant has not responded within the prescribed time.  In these circumstances section 359C applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal.  The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

13. A Tribunal officer had accessed the applicant’s PRISMS records which confirmed the applicant’s enrolment in the Advanced Diploma of Business at Stanley College was cancelled.  This was the basis of the adverse information sent to the applicant on 9 April 2021.

14. To satisfy the Australian study requirement the applicant needs to have completed his study within 6 months prior to his application for the visa.  He applied for his visa on 30 November 2018 and 6 months before that date is 30 May 2018.  The study which the applicant provided evidence of having completed was undertaken by July 2017.

15. The Tribunal finds the applicant has not satisfied his study requirement in the 6 months immediately prior to the date of his visa application.

16. Accordingly, the applicant does not satisfy cl.485.221.

17. 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

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

    Michelle East
    Member