Patel (Migration)

[2019] AATA 6026

Patel (Migration) [2019] AATA 6026 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bhupen Shamji Karsan Patel
Mrs Chandni Valji Vekeriya

CASE NUMBER:  1719189

HOME AFFAIRS REFERENCE(S):          BCC2017/2024064

MEMBER:Stavros Georgiadis

DATE:1 October 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration in respect of all applicants, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations.

Statement made on 1 October 2019 at 3:58pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – evidence of coursework for diploma having been completed within 6 months before application – college’s completion letter and academic transcript state different dates – completion letter dated after application submitted – date of completion is the date of notification that all course requirements met – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cl 485.211

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 Immigration and Border Protection on 11 August 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 June 2017. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.221 of Schedule 2 to the Regulations as the delegate considered he had not provided evidence of the coursework for his Diploma of Automotive Technology having been completed in the last 6 months ending immediately before the day the application was made on 7 June 2017. The second named applicant was also therefore, not able to satisfy the secondary criteria for the visa as a member (spouse) of the same family unit as the holder of a Subclass 485 visa.

4. The applicants appeared before the Tribunal on 1 October 2019 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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 is whether the first named applicant (the applicant) satisfies cl.485.221 of Schedule 2 to the Regulations which requires evidence of the coursework for the applicant’s Diploma of Automotive Technology having been completed in the last 6 months ending immediately before the day the application was made.

8. The Tribunal has had regard to the applicant’s written submissions dated 23 September 2019 and attachments in addition to the oral evidence provided at the hearing. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the 'Australian study requirement' in the 6 months immediately preceding the day the visa application was made - being 7 December 2016 to 6 June 2017.

9. The applicant’s visa was refused as the delegate found the applicant had failed to meet 485.221 because he had lodged his 485 visa application on 7 June 2017 but his completion letter from Sheffield College, submitted with the application, states that he completed his Diploma of Automotive Technology on 19 June 2017, some 12 days after the lodgement of his visa. The applicant’s submission is that, included with this visa application, were the following two supporting documents:

   ·     Diploma of Automotive Technology completion letter - stating the applicant completed his Diploma of Automotive Technology on 19 June 2017; and

   ·     Diploma of Automotive Technology academic transcript stating the applicant completed his Diploma of Automotive Technology on 5 June 2017.

10. The Tribunal accepts that the applicant’s online application sets out that he had completed his Diploma of Automotive Technology on 5 June 2017.  It is apparent that the delegate refused the applicant’s Subclass 485 visa based on the letter’s completion date of 19 June 2017 and not the academic transcript’s completion date of 5 June 2017, concluding that the applicant lodged his Subclass 485 application prior to completing the required two years of (CRICOS) study.

11. The Tribunal is satisfied that the relevant courses undertaken by the visa applicant in addition to the Diploma of Automotive Technology above have included a Certificate III in Light Vehicle Mechanical Technology awarded on 16 October 2015 and a Certificate IV in Automotive Mechanical Diagnosis, awarded on 28 November 2016.  The Tribunal accepts that these are CRICOS registered courses with Sheffield College, undertaken by the applicant in Australia (South Australia) as the holder of a visa authorising him to study (Class TU-572 and TU-573 Student visas), with all instruction conducted in English, and completed in a total of at least 2 academic years of study (104 weeks out of 92 weeks required here) in a total period of at least 16 calendar months - to satisfy the ‘Australian study requirement’ in r.1.15F(1). 

    New Information

12. The applicant’s evidence is that upon receiving a refusal for his 485 application he approached Sheffield College regarding the inconsistency of the completion date stated on his completion letter and the completion date stated on his academic transcript. His evidence is that Sheffield College responded by providing a statement (document 11 of attachments to the written submissions) stating that he had, in fact, completed all the academic requirements for his qualification on 5 June 2017. The letter from Sheffield College dated 24 August 2017 sets out that Mr Patel had completed his Diploma of Automotive Technology qualification prior to 7 June 2017, the date of 485 visa lodgement. The letter sets out that the applicant had ‘successfully completed all the requirements for the course including the vocational placement’ for the Diploma qualification on 5 June 2017. This is supported by the Diploma of Automotive Technology academic transcript (Document 9) supplied with the applicant’s written submissions and also at the time of lodgement of his 485 visa application.

13. The Tribunal has had regard to the Department’s PAM3 Guidelines in respect of the Subclass 485 visa that state:

    ‘The date of completion of the eligible qualification is the date the primary applicant was notified that all academic course requirements were met. The critical date, therefore, is the date on which the results of the applicant's final exams or notice of completion of the course were available or published. This is the date which triggers the 6 month period during which the applicant may apply for the VC-485.’

14. The Tribunal notes from the PAM 3 Guidelines and the Act that: ‘Completed in relation to a degree, diploma or trade qualification’ is defined in r.1.15F(2) to mean ‘having met the academic requirements for its award’.

15. The submission is that the applicant completed his Diploma on 5 June 2017, being 2 days prior to lodging his 485 visa application on the basis that ‘The date of completion of the eligible qualification is the date the primary applicant was notified that all academic course requirements were met’.

16. The Tribunal finds that the applicant was notified on 5 June 2017 that he had successfully completed all requirements for his Diploma of Automotive Technology qualification noting that his results were available to him on 5 June 2017, two days prior to lodgement of his 485 visa application.

17. Although the PAM 3 Guidelines are not to be elevated to that of a legislative instrument, there is no reason apparent to the Tribunal that it should not follow the Department’s PAM 3 Guidelines in this particular case in regard to the criteria required to be satisfied for the applicant’s Subclass 485 visa application.

18. Accordingly, the Tribunal is satisfied that the applicant meets Regulation 1.15F for the purposes of cl.485.221.

19. The Tribunal therefore, finds that the applicant satisfies cl.485.221.

20. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria in respect of all applicants including his spouse, Chandi Valji Vekariya, as a member of the same family unit as the applicant.

    DECISION

21. The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration in respect of all applicants, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member