Polwaththa Siriyalage (Migration)

[2024] AATA 165

Polwaththa  Siriyalage (Migration) [2024] AATA 165 (23 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charith Ushantha Madhusanka Polwaththa  Siriyalage

REPRESENTATIVE:  Ms Noeline  Smart

CASE NUMBER:  2118857

HOME AFFAIRS REFERENCE(S):          BCC2019/2621262

MEMBER:Warren Stooke AM

DATE:23 January 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 23 January 2024 at 6:50pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Locksmith – Australian study requirement – no evidence of specified qualification – courses completed within 6 months before visa application – decision under review affirmed 

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221- 485.223; rr 1.03, 1.15, 2.26

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 22 November 2021 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 20 May 2019. 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 Graduate stream, which include cl 485.221, 485.222 and 485.223.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 485.221 of Schedule 2 to the Regulations because the delegate was not satisfied the Advanced Diploma of Hospitality Management meets Regulation 485.221 as the applicant has not provided sufficient evidence that the course was completed in the 6 months ending immediately before the day the application was made.

4. On 5 January 2024, The Tribunal corresponded with the applicant pursuant to s359A regarding adverse information and requested a response by the applicant before 19 January 2024.

5. As at the date of decision, the applicant has not responded to the Tribunal’s correspondence of 5 January 2024.

6. As the applicant had not responded to the Tribunal’s correspondence containing a request for information of 5 January 2024, the applicant has lost the right to a hearing and accordingly, the Tribunal has proceeded to determine the matter without recourse to a hearing.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Clause 485.221 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, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

10. On 5 January 2024, The Tribunal corresponded with the applicant pursuant to s359A regarding adverse information and requested a response by the applicant before 19 January 2024, as follows:

    “Dear Mr Polwaththa Siriyalage,

    INVITATION TO PROVIDE INFORMATION – MR CHARITH USHANTHA
    MADHUSANKA POLWATHTHA SIRIYALAGE
    I am writing on instruction from the Member conducting your review, in relation to the
    application for review made by you in respect of a decision to refuse to grant a Skilled
    (Provisional) (Class VC) visa.

    You are invited to provide the following information in writing:

    • Certificate III in Commercial Cookery at Technical Institute of Victoria from 18 Apr 2016 to 15 Apr 2017
    • Certificate IV in Commercial Cookery at Technical Institute of Victoria from 18 Apr 2017 to 30 Aug 2017
    • Diploma of Hospitality management at Australian Education Academy from 15 Jan 2018 to 15 Jul 2018
    • Advanced Diploma of Hospitality Management at Australian Education Academy from 01 Oct 2018 to 19 May 2019

    The information should be received by 19 January 2024. If the information is in a
    language other than English, it must be accompanied by an English translation from
    an accredited translator.

    If you cannot provide the information by 19 January 2024, you may ask us for an
    extension of time in which to provide the information. If you make such a request, it
    must be received by us by 19 January 2024 and you must state the reason why the
    extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.
    If we do not receive the information within the period allowed or as extended, we may
    make a decision on the review without taking any further action to obtain the
    information. You will also lose any entitlement you might otherwise have had
    under the Migration Act 1958 to appear before us to give evidence and present
    arguments.

    If you have any questions, please email [email protected], or contact me on the
    number listed below, or telephone our national enquiry line on 1800 228 333. For
    language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

11. As at the date of decision, the applicant has not responded to the Tribunal’s correspondence of 5 January 2024.

12. The applicant was granted a Bridging Visa B on 15 March 2020 that permits multiple entries and requires the applicant, with condition 8501, to maintain health insurance.

13. The applicant provided the Department with evidence of a TRA assessed as successful on 3 September 2019 for the occupation of Chef.

    Does the applicant hold a specified qualification?

14. Clause 485.221(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 of Register of Instruments - Skilled Visas. In this case, the applicant has not responded to the Tribunal’s s359A correspondence of 5 January 2024 and provided adequate information to support the completion of a course of study at a registered institution in the 6 months immediately prior to the application for the current visa on 20 May 2019.

15. Therefore the applicant does not satisfy cl 485.221(1).

    Does the applicant meet the Australian study requirement?

16. Clause 485.221(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

17. 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.

18. ‘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 of Register of Instruments - Skilled Visas.

19. The Tribunal is not satisfied that the applicant completed a degree, diploma or other trade qualification (as defined: see reg 2.26AC(6)) in the 6 months immediately before the application was made on the basis that the applicant claimed in their application to have completed an Advanced Diploma of Hospitality Management at Australian Education Academy from 01 Oct 2018 to 19 May 2019, which has not been supported by the submission of evidence sought in the Tribunal’s s359A correspondence of 5 January 2024.  In this regard, the applicant has not responded to the Tribunal’s correspondence with the required evidence.

20. The Tribunal finds, on the basis of the non-submission of evidence of course completion for the Advanced Diploma of Hospitality Management, that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

21. Based on the evidence provided by the applicant, the Tribunal is not satisfied the Advanced Diploma of Hospitality Management meets Regulation 485.221 as the applicant has not provided sufficient evidence that the course was completed in the 6 months ending immediately before the day the application was made on 20 May 2019.

22. Therefore, the Tribunal finds that the applicant is unable to meet the requirements for subclause 485.221 of the Regulations.

23. Accordingly, cl 485.221(3) is not met.

24. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.221. 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.

    DECISION

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

    Warren Stooke AM
    Member