Pathak (Migration)

[2024] AATA 3703

Pathak (Migration) [2024] AATA 3703 (30 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rojan Pathak

REPRESENTATIVE:  Ms Simplepreet Kaur (MARN: 1805025)

CASE NUMBER:  2211319

HOME AFFAIRS REFERENCE(S):         BCC2021/1819726

MEMBER:Alison Mercer

DATE:30 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 30 August 2024 at 3:48pm

CATCHWORDS 
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – applicant did not have the required English language proficiency – PTE Academic English tests were undertaken after he lodged his visa application – test was not undertaken by the applicant in the 3 years before the day on which the visa application was made – unique and exceptional circumstances – Ministerial intervention – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 485.212

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 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 21 September 2021. 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 (Cth) (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 the visa on 19 July 2022 because the applicant did not have the required English language proficiency. The delegate noted that the applicant did not hold a specified passport and indicated that he had not undertaken a specified English test in the 3 years prior to making his visa application. The delegate therefore found that the applicant could not satisfy cl.485.212 and could not be granted a subclass 485 visa.

4. The Tribunal received a review application from the applicant on 4 August 2022. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Simplepreet Kaur, as his representative and authorised recipient for correspondence. The applicant also provided the following:

   ·copy of the applicant’s PTE Academic English test undertaken on 27 July 2022, in which he obtained an overall score of 58 points;

   ·Australian Federal Police (AFP) check for the applicant issued 7 September 2021;

   ·medical information relating to the applicant’s father, January - February 2022;

   ·evidence of cancellation of PTE English test booking for the applicant in August 2021;

   ·evidence of the applicant undertaking COVID19 tests in May, June, July, August, September, October and December 2021 and January 2022 (various dates); and

   ·submissions from the applicant’s agent dated 2 August 2022.

5. The applicant made the following points in his written submission:

   …

   I Simplepreet Kaur, registered migration agent (MARN: 1805025) am writing this explanation in support of the above applicant’s AAT application in response to his Temporary Graduate (Class VC) Temporary graduate (Post study work) (Subclass 485) visa refusal.

   Legislation:

   Reg 485.212

   (1) The application was accompanied by evidence that:

   (a) the applicant:

   (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument;

   Background:

   Applicant has submitted his subclass 485 visa on 21 September 2021 after successful completion of his Bachelor of Business on 9 July 2021. The applicant met all the relevant criteria under Reg 485.21 and Item 1229 of Migration regulations 1994 for making a valid visa application except for the Reg 485.212(1)(a) which is undertaking a language test specified by the Minister within a specified period.

   Reasons:

   The applicant has booked his PTE exam before the lodgment of his subclass 485 visa. However, due to COVID pandemic and ongoing restrictions Pearson VUE has cancelled his exam at many instances. Also, the applicant has to undergo a lot of COVID testing and isolation for being a close contact of COVID 19 positive patients. Due the above he was not able to successfully appear for his PTE exam. Please find attached cancellation emails and COVID testing texts.

   The applicant’s student visa was expiring on 30 Sep 2021 and the applicant did not wish to become unlawful or ineligible to apply for a 485 visa. On the advice of his previous Migration agent he has submitted his 485 visa based on the evidence that he has rescheduled his PTE exam and will appear for it soon and submit the test report. The evidence was provided to the Migration Agent. Unfortunately, the exam was cancelled again by Pearson VUE and the applicant informed the agent about the cancellation of the exam so that the agent can timely inform the Department. The Migration Agent failed to inform the Department and the applicant was unaware about it until he received a refusal on 19 July 2022.

   The applicant also had to travel to Nepal during the process due to urgent health concerns of his father who had to undergo medical treatment. His family needed him at that crucial time. He was away from his family for a long time but was planning to travel. Unfortunately, due to travel restrictions imposed during pandemic he could not see his family. Henceforth it was a dire need of the hour to be with his family and support them. The applicant has informed his previous migration agent about this as well as he would not be able to appear for a PTE exam during his stay in Nepal due to closure of test centers [sic].

   The applicant after his return to Australia tried booking a test at his earliest convenience but by the time he could submit the test result the Department refused his visa. The applicant until then was in an impression that the Department is aware about his circumstances and has allowed him time to submit his English test results.

   In support of the above the applicant has submitted his

   * IMMI refusal decision letter

   * PTE cancellation copy

   * COVID tests confirmations

   * Father’s medical letter and diagnosis

   * PTE test result report

   * A valid Australian Federal Police check

   * Passport

   * COVID testing facility attendance record

   To Summarize

   From all the above I believe that the applicant was affected by circumstances beyond his control. He had a genuine intention to appear for the specified English test and submit it for 485 visa purpose. He failed to appear because of the pandemic. He has timely informed his Migration agent about the delays. The Migration agent failed to comply with the client’s instructions which have led to my client’s visa refusal.

   I humbly request the Tribunal to consider the client’s situation and remit the Department’s decision and grant him a Temporary Graduate (Class VC) Temporary graduate (Post study work) subclass 485 visa.

   …

6. On 14 July 2023, the applicant’s agent provided the above information to the Tribunal again, together with a new PTE Academic English test score report for the applicant, indicating that he obtained an overall score of 72 (with scores of 63 for listening, 80 for reading, 70 for speaking and 73 for writing) in a test he undertook on 6 July 2023.

7. On 22 July 2024, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 7 August 2024.

8. On 31 July 2024, the Tribunal received a hearing response indicating that the applicant and his agent would attend the hearing on 7 August 2024, together with:

   ·an updated AFP check for the applicant issued 9 July 2024 (for Care, Instruction or Supervision of Children/Care of Disabled persons/ Aged Care Staff/ Volunteers);

   ·academic transcript for the applicant’s Bachelor of Business degree from Melbourne Institute of Technology, issued 14 July 2021;

   ·duplicate information about the applicant undertaking COVID19 testing in 2021 and 2022;

   ·duplicate information about the applicant’s father’s health condition in Nepal;

   ·letter dated 26 July 2024 from Dr Mamun Ala confirming that the applicant attended an online counselling session with Dr Ala on that date, in which he reported experiencing symptoms of stress, anxiety, sleep disturbance and concern about his future linked to the refusal of his subclass 485 visa due to his former agent’s failure to upload his English test results to the Department; and

   ·letter dated 30 July 2024 from Andrew Darken of Shanti Holistic Counselling confirming that the applicant attended a telehealth appointment the previous day and presented with feelings of stress, anxiety, sadness, overwhelm and insecurity, which appeared to have surfaced during the period of the COVID19 pandemic and his visa refusal. Mr Darken notes that the applicant is currently working full time as a Chef and that he supports the applicant’s attempts to continue to manage his mental health challenges, including the possible risk of self-harm, whatever the outcome of the applicant’s review application.

9. The applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who also attended the hearing.

10. At the commencement of the hearing, the applicant and his agent provided a copy of an Australian Government press release dated 20 July 2020 from the Hon Alan Tudge MP (then acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), headed ‘Supporting international students to support Australian jobs,’ which refers to the fact that (amongst other things) the Australian government would make changes to ensure international students were not worse off due to the COVID19 pandemic, including the fact that ‘additional time will be given for applicants to provide English language results where COVID-19 has disrupted access to those services.’

11. The applicant confirmed the contents of his agent’s submissions about his immigration and health history. He told the Tribunal that he understood that he had to undertake a specified English test prior to lodging his subclass 485 visa application in 2021, and that he had booked to do so but because this was during the COVID19 pandemic in Melbourne, all testing centres were frequently closed and/or cancelled scheduled test dates due to the ongoing lockdowns imposed by the Victorian government. He was therefore unable to sit an English test before making his subclass 485 visa application on 21 September 2021, and he had to apply by then to avoid having his student visa expire before making the subclass 485 visa application.

12. The applicant and his agent noted that they understood that concessional arrangements were implemented by the Department during this period, with the effect that (amongst other things) subclass 485 visa applicants could lodge their visa applications prior to undertaking an English test, and could sit an English test and provide the results to the Department after lodging their visa application.

13. The applicant confirmed also that he had to travel back to Nepal in early 2022 for 45 days as his father was ill with gallstones and the applicant (as the only son) had a responsibility to care for his parents and so obtained a bridging visa B to do so. He informed his then agent of this and assumed the agent would inform the Department that the applicant was unable to undertake an English test in that period. The applicant noted that he was under a lot of mental stress at this time, as he also had extended family members in Nepal who had died from COVID19. He was prescribed anti-anxiety medication by a doctor in Nepal, which he continued to take when he returned to Australia, as he had lost his job when the COVID19 pandemic occurred.

14. Upon his return to Australia, the applicant said that he had to undertake a significant number of COVID19 tests (in connection with which he had to isolate until he received the results) because of potential exposure to COVID19, and this also prevented him from undertaking a specified English test until July 2022. He noted that his July 2022 and July 2023 PTE Academic Tests exceeded the required scores. The Tribunal acknowledged this but noted that they were not undertaken in the 3 years immediately before the applicant applied for this subclass 485 visa, as required by cl.485.212(1) and the associated written instrument, IMMI 15/062. The Tribunal further noted that although the Department ignored this legal requirement for a period during the COVID19 pandemic, the underlying legislation (and IMMI 15/062) was never amended to change the requirement that any specified English test had to be undertaken in the 3 years before the subclass 485 visa application in order to meet the requirements for the visa. The Tribunal stated that it could not waive or overlook the actual legislative requirements, regardless of the Departmental practice of doing so during the COVID19 pandemic.

15. In response to the Tribunal’s query, the applicant said that he remained under a great deal of mental stress due to the events of the COVID19 pandemic in Melbourne and his separation from his family in Nepal for a significant period, and his unresolved visa status, which affected his ability to find employment in the field of his study in Australia and plan his future. The applicant said that currently, he was working full-time as a Chef in a restaurant in Melbourne and sharing accommodation with his sister, who came to study in Australia on his encouragement. The applicant noted that his sister would be affected if he had to return to Nepal and further noted that he and his sister also had an aunt in Melbourne who was an Australian permanent resident, to whom they were close. The applicant said that he had now been in Australia for close to 7 years and wanted to make his future here, as living here had taught him to be independent.

16. The Tribunal discussed with the applicant and his agent its view that legally, the applicant could not meet cl.485.212(1) and the requirements of the associated IMMI 15/062 because his PTE Academic English tests were undertaken after he lodged his visa application, but that it could consider referring his matter for Ministerial intervention pursuant to s.351 of the Act, which conferred a personal power on the Minister to intervene in the case of a failed review applicant to grant a visa where the applicant did not technically meet the visa requirements. It indicated that it would give the applicant and his agent 2 weeks after the hearing to investigate this option and advise the Tribunal by 21 August 2024 whether they wished to request the Tribunal to refer the matter for Ministerial intervention.

17. The applicant and his agent noted that many applicants – some personally known to the applicant, and whose circumstances were similar (that is, they did English tests after they lodged their subclass 485 visa applications) where they were granted subclass 485 visas and this seemed unfair.

18. Following the hearing, the Tribunal received an email from the applicant’s agent on 20 August 2024 confirming that they wished to request that the Tribunal refer the applicant’s matter for consideration of Ministerial intervention pursuant to s.351 of the Act.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant satisfies cl 485.212. Clause 485.212(1) requires that the application was accompanied by evidence that:

    ·the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl 485.212(1)(a)); or

    ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

21. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2). The Tribunal notes that cl.485.232 and cl.485.233 both refer to a person making a second subclass 485 visa application. It is satisfied that from the Department’s records that the applicant has not made an earlier subclass 485 visa application, and that the application under review is his first subclass 485 visa application.

22. As the applicant does not satisfy cl 485.232 or cl 485.233, cl 485.212(1) applies.

23. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl 485.212(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a), which provides as follows:

    485.212

    (1) The application was accompanied by evidence that:

    (a) the applicant:

    (i) has undertaken a language test specified by the Minister

    in a legislative instrument made for this paragraph; and

    (ii) has achieved, within the period specified by the Minister in the instrument,

    the score specified by the Minister in the instrument in accordance with the

    requirements (if any) specified by the Minister in the instrument;

    ...

24. IMMI 15/062 states that a PTE Academic test is a specified language test for the purposes of cl.485.212(1)(a)(i) and that an applicant must obtain a minimum overall score of 50, with a minimum score of 36 points for each of the components of listening, reading, writing and speaking in such a test. Item 4 of IMMI 15/062 states that such a test must have been undertaken within the 3 years before the day on which the visa application was made.

25. The Tribunal acknowledges that the applicant provided to the Tribunal PTE Academic English test results for a test he undertook on 27 July 2022, in which he obtained an overall score of 58, with scores of 58 for listening, 59 for reading, 66 for speaking and 59 for writing. As noted above, the PTE Academic Test is a specified test, and the applicant obtained the required scores for that test set out in IMMI 15/062. However, as discussed with the applicant at hearing, the test was not undertaken by the applicant in the 3 years before the day on which the visa application was made (21 September 2021) as required by item 4 of IMMI 15/062. It is not disputed that the applicant had not undertaken any other specified English test in the 3 years prior to 6 March 2021.

26. The Tribunal notes the evidence provided by the applicant indicating that during this period, the Department advised applicants that if they were unable to obtain certain documents (such as health exams and/or English test results) due to COVID19 restrictions, they should lodge their subclass 485 visa applications and provide the documents as soon as possible after lodgement. It also notes the applicant’s belief that had he done this during this period, he would likely have been granted a subclass 485 visa.

27. While it is impossible to know if the Department would in fact have granted the applicant a visa, the Tribunal acknowledges that Departmental policy during the COVID19 pandemic period appears to have been to accept subclass 485 visa applications where an English test had not been undertaken prior to lodgement if there was evidence that an applicant had been unable to book a test date prior to lodgement due to COVID19 restrictions or illness.

1. However, the Tribunal does not have the discretion to depart from the clear wording of cl.485.212 and item 4 of IMMI 15/062, which clearly indicate that at the time of lodgement of the subclass 485 visa, the visa application must be accompanied by evidence that the applicant either held a specified passport (the applicant in this case does not) or that the applicant had, in the previous 3 years, undertaken a specified English test in which he had obtained the required scores.

2. Unfortunately, the applicant in this case is unable to meet this requirement, and the relevant legislation does not give the Tribunal any discretion to waive or overlook this requirement.

3. Accordingly, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

4. On the basis of the above, the applicant does not meet the requirements of cl 485.212 of Schedule 2 to the Regulations and therefore 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.

   Ministerial intervention

5. The Tribunal acknowledges that the circumstances set out above have caused the applicant a significant amount of stress and led to his immigration status being unresolved for a number of years, making it difficult for him to obtain Australian employment experience in his field of business. It also notes the applicant experienced significant stress during the COVID 19 pandemic period, including isolation in Australia and serious illness of family members in Nepal. The Tribunal notes that the applicant and his agent have asked the Tribunal to refer the applicant’s case for Ministerial intervention pursuant to s.351 of the Act.

6. Under s.351 of the Act, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to determine, and the Minister’s power to intervene is personal and non-compellable. This means that the Minister does not have a duty to use, or consider using, any of the powers.

7. There is no evidence before the Tribunal to indicate that the applicants’ case falls within the scenarios set out in the list of cases where the Minister has indicated that they would not intervene, which are set out in the Department’s Procedures Advice Manual (PAM3) (most recent issue date 20 August 2024). The Guidelines provide as follows:

   …

   CASES THAT SHOULD BE BROUGHT TO MY ATTENTION

   4. Unique or exceptional circumstances

   Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

   ·     strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

   ·     compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

   ·     exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

   ·     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

   ·     the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control

   ·     a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country

   ·     the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.

   5. Other relevant information

   5. Other relevant information

   all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:

   ·     circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

   ·     circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme

   ·     whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations

   ·     whether there are character concerns in relation to the person, particularly concerns related to criminal conduct

   ·     information about a person’s history of compliance with Australian laws, including migration laws, such as:

   oany offence or fraud against the migration or citizenship legislation

   oany failure to comply with their visa conditions

   oany periods as an unlawful non-citizen in the community

   otheir history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents

   ·     details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case

   ·     the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.

   CASES THAT SHOULD NOT BE BROUGHT TO MY ATTENTION

   6. When the powers are not available

   My intervention powers are not available if:

   ·     there is no review decision on the case by a relevant review tribunal or

   ·     I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa.

   7.  Inappropriate to consider

   Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing:

   ·     the request is made by a person who is not the subject of the request or their authorised representative

   ·     the person is in the community and:

   ois an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request; and/or

   odoes not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)

   ·     the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa

   ·     the person’s visa has been cancelled because they breached their visa conditions

   ·     the person has had a visa refused because they did not comply with the conditions of a previous visa

   ·     the person has been refused a visa or has had a visa cancelled on character grounds

   ·     ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect

   ·     the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided

   · the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)

   ·     the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore

   ·     the person has left Australia

   ·     the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department

   ·     the person has an ongoing application for merits review of a visa decision with a relevant review tribunal

   ·     the person has had a remittal or a set aside decision from a relevant review tribunal or a court

   ·     the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E

   ·     the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines

   ·     a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department

   ·     the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date

   ·     the request raises claims only in relation to Australia’s non refoulement obligations. 

   …

8. The applicant’s basis for potentially seeking Ministerial intervention can be summarised as follows:

   ·the application of the relevant legislation leads to particularly unfair or unreasonable results in this case, in that the applicant at the time that the applicant made his subclass 485 visa application in September 2021, the Department was taking a more flexible approach than the legislation allowed, by allowing applicants to lodge their visa applications prior to undertaking a specified English test, and granting the visa if an applicant provided an English test undertaken after visa lodgement in which they obtained the required scores (despite this policy being ultra vires when compared with the underlying legislation);

   ·the applicant was unable to sit and successfully pass a specified English test shortly after lodging his visa application due to the frequent closure of English testing centres in Melbourne during the COVID19 period between 2020 and 2022, limiting the applicant’s ability to undertake a test. He advised the Department of this at the time that he lodged his visa application. In addition, the applicant was required to quarantine for various periods during this time due to potential exposure to COVID19, which further reduced his opportunity to sit an English test;

   ·when the applicant was able to sit a specified English test, he did so and obtained the required scores in July 2022;

   ·the applicant successfully completed a Bachelor degree of Business in Australia. He is currently employed as a Chef in Australia;

   ·the applicant had been in Australia for approximately 6 years as the holder of a student visa, followed by bridging visas with work rights following the subclass 485 visa application. He has therefore spent most of the last 6 years in Australia, apart from the period when he returned to Nepal for approximately 1.5 months in early 2022 due to his father’s ill health;

   ·it was unfair that other applicants were granted subclass 485 visas during the period when the Department was not enforcing the requirement to have undertaken an English test in the 3 years before making the visa application, but the applicant was refused a visa in the same circumstances;

   ·the applicant’s mental health has suffered as a result of his experiences and his unresolved visa status, and he has sought counselling for this. This constitutes compassionate circumstances regarding his health and/or psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to him; and

   ·despite this, the applicant had made his life here and was employed and well integrated into the Australian community, which includes his aunt, who is an Australian permanent resident.

9. The Tribunal notes that the purpose of the subclass 485 (Temporary Graduate) visa is for overseas students completing Australian qualifications to gain employment experience in their field in Australia. In this case, the applicant is working for an Australian employer as a Cook/Chef in a Melbourne restaurant, a position which is not directly relevant to his Australian qualifications in Business. However, the Tribunal notes that the occupation of Chef remains in short supply in Victoria (and throughout Australia) according to the most recent Skills Priority List published by the Australian government’s National Skills Commission in 2023: Skills Priority List | Jobs and Skills Australia, suggesting that his Australian employer may struggle to replace him if he is unable to continue in his role with them.

10. The Tribunal also notes that the applicant would not now be able to reapply for a subclass 485 visa as he would be unable to satisfy the Australian study requirement, which requires that the applicant completed his Australian qualifications in the 6 months immediately before making his visa application.

11. The Tribunal accepts that the applicant has mental health issues arising from his experiences during COVID and the refusal of his subclass 485 visa application. It further accepts that although he could not undertake a specified English test in the 3 years before making his visa application, or in the period immediately after he lodged it, this was for factors that were beyond his control. He ultimately did so in July 2022, when he obtained the required scores. It appears to the Tribunal that had he been able to do so earlier, he would have met the visa requirements for a subclass 485 visa. The Tribunal also gives weight to the public announcements made by the Department during the COVID19 pandemic advising applicants that they could lodge their subclass 485 visa applications without first having undertaken an English test, and that many applicants who did so were granted subclass 485 visas in circumstances essentially similar to those of the applicant. It therefore appears to the Tribunal that the application of the law in the applicant’s case leads to a particularly unreasonable and/or unfair result.

12. When taken together, and cumulatively, the Tribunal is satisfied that these factors constitute unique and exceptional circumstances which warrant consideration by the Minister pursuant to s.351 of the Act, and it refers the case to the Minister for this purpose.

    DECISION

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

    Alison Mercer
    Senior Member