Singh (Migration)

[2022] AATA 811

Singh (Migration) [2022] AATA 811 (6 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satnam Singh

REPRESENTATIVE:  Mr Shiva Sesham (MARN: 0105419)

CASE NUMBER:  1915366

HOME AFFAIRS REFERENCE(S):          BCC2019/1362782

MEMBER:Mary Sheargold

DATE:6 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 06 April 2022 at 8:09am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – completion of relevant course within 6 months before application made – further study commenced but ceased – student visa due to expire – no discretion to waive requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.221

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 4 June 2019 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 18 March 2019. 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 to grant the visa because the applicant did not satisfy cl 485.221 of Schedule 2 to the Regulations because his Diploma of Automotive Management was completed more than 6 months immediately before the day the application was made.

4. The applicant appeared before the Tribunal by MS Teams video link on 28 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing and was present with the applicant on the same video link.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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; 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.

9. ‘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.

10. The applicant applied for this visa on 18 March 2019.  He completed a Diploma of Automotive Management on 15 July 2018.  The Tribunal accepts that his Diploma of Automotive Management is sufficient to meet the requirements in r.1.15F because the evidence before the Tribunal confirms that the course was registered, it was completed over at least 16 calendar months, it was the result of at least 2 academic years of study, it was taught in English, and the applicant held the requisite student visa for the duration of his studies.  The issue in dispute is whether he completed the course(s) relied on to meet r.1.15F in the 6 months immediately before the day the application was made.

11. It is clear that the applicant did not apply for this visa within 6 months of completing his Diploma of Automotive Management.  At the hearing, the Tribunal discussed with the applicant the circumstances leading to his decision to file his Subclass 485 visa at the time he did.  His evidence, that the Tribunal accepts, was that he commenced studies for a diploma in leadership and management, but ceased that study after 6 months.  His student visa was due to expire, and so he instructed his migration agent to apply for this visa.  The applicant’s evidence is that the agent misled him as to the reasons his visa was refused; that is, he was told his application was refused because his studies in leadership and management were not closely related to his nominated occupation of motor mechanic.  Mr Singh told the Tribunal that he only became aware of the actual reason for the refusal immediately prior to his hearing where he instructed a new migration agent to represent him and the decision record was explained to him.

12. At the hearing, Mr Singh’s agent submitted that he had advised Mr Singh of the futility of his application to the Tribunal but respected Mr Singh’s wish to plead his case.  Essentially, Mr Singh contends that his reliance on his previous migration agent led to the visa refusal and he seeks the Tribunal’s assistance to overcome this obstacle.  At the hearing, the Tribunal discussed with Mr Singh its sympathy for his position, but noted that the Tribunal is bound to apply the relevant law in making its findings, and that it has no discretion to act outside the law.  It is a strict requirement in cl.485.221 that he demonstrate the courses relied upon to meet the Australian study requirement were completed no less than 6 months immediately before the day he made his application.  Mr Singh accepts that his application was made more than 6 months after the date he completed his Diploma in Automotive Management, and he indicated that he understood the Tribunal was therefore bound to find he cannot meet cl.485.221.

13. Therefore, based on all the evidence before it, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, the applicant does not meet cl 485.221.

14. 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

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

    Mary Sheargold
    Member