Singh (Migration)

[2024] AATA 2201

Singh (Migration) [2024] AATA 2201 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kanwal  Preet Singh

REPRESENTATIVE:  Mr Pawan  Kumar Bhambi (MARN: 0801321)

CASE NUMBER:  2117167

HOME AFFAIRS REFERENCE(S):          BCC2020/2505424

MEMBER:Amanda Mendes Da Costa

DATE:11 June 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 11 June 2024 at 3.20pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Painting Trades Worker – Australian study requirement – Certificate III in Painting and Decorating – completed six months and one day immediately before the day of the visa application – former migration agent’s mistake – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; 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 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 21 October 2020. 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 the coursework for his qualification (Certificate III in Painting and Decorating) was not completed in the six months immediately prior to the day the visa application was made and therefore could not be used to satisfy the study requirement for the visa.

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 15 May 2024 to give evidence and present arguments.

5. The Tribunal determined it was reasonable to hold the 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 conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

6. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

7. The applicant was represented in relation to the review, with his representative also participating in the hearing.

8. At the conclusion of the hearing the Tribunal gave the applicant further time in which to provide documentation supporting his review application and he subsequently provided the following information:

   ·PTE Academic Score Report for the applicant, dated 23 February 2021 and valid until 23 February 2023.

   ·Trades Recognition Australia (TRA) Provisional Skills Assessment dated 21 April 2021.

   ·Australian Federal Police National Police certificate dated 28 September 2020.

   ·Letter, Medibank Private Limited, dated 13 October 2021.

   ·Written submissions dated 5 June 2024.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl 485.221 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(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.221(b)).

    Does the applicant meet the Australian study requirement?

11. 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.

12. ‘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 or courses registered under the Education Services for Overseas Students Act 2000 (Cth): LIN 19/085.

13. The applicant made an online application for the visa on 21 October 2020 and declared the following completed course of study under Australian qualifications:

    ·Certificate III in Painting and Decorating, 4 March 2019 to 20 April 2020

    ·Diploma of Management, 18 January 2016 to 8 July 2016

    ·Business, 6 July 2015 to 8 July 2016

    ·Business, 13 April 2015 to 3 September 2015

14. The applicant provided a letter of completion for his CPC 30611 Certificate III Painting and Decorating qualification obtained from The Centre of Excellence at the time he lodged his application. The letter of completion stated the applicant completed his course on 20 April 2020.

15. The delegate found that the applicant completed his course more than six months immediately before the day the application was made and therefore his Certificate III in Painting and Decorating qualification could not be used to satisfy the study requirement for the visa.

16. The Tribunal discussed the above information with the applicant during the hearing. He conceded that the course work for his Certificate III qualification in Painting and Decorating was completed six months and one day immediately before the day of the visa application and explained that this was due to a mistake made by his previous migration agent.

17. The applicant further conceded that he did not hold any other qualification obtained in the six months prior to his visa application and although he had undertaken studies for an Advanced Diploma of Construction Management in Australia, he was yet to complete the course.

18. The applicant said that he was disappointed in the actions of his former migration agent whom he had trusted and to whom he provided all the necessary documents for his visa application approximately one month prior to the visa application being made.

19. The Tribunal has considered the material provided to it following the hearing. It notes that:

    ·The Pearson PTE Academic Score Report shows that the applicant had an overall score of 51 with individual skills of 50 for Listening, 55 for Reading, 54 for Speaking and 50 for Writing in English.

    ·The Provisional Skills Assessment indicates that the applicant was assessed by TRA successfully for the occupation of Painting Trades Worker, ANZSCO 332211.

    ·The National Police certificate states that there are no disclosable court outcomes for the applicant.

    ·The letter from Medibank Private Limited shows that the applicant had a health insurance policy commencing 22 October 2022 to 21 October 2021.

20. The applicant’s submissions may be summarised as follows:

    ·The applicant’s visa was refused because his former representative failed to act in a timely manner in lodging the visa application on his behalf.

    ·The applicant meets each of the criteria of the grant of a subclass 485 visa, save for the fact that he does not meet he Australian study requirements because he completed the course work for his Certificate III in Painting and Decorating six months and one day more than six months immediately before the day the visa application was made. He therefore does not meet cl 485.221.

    ·The applicant was not responsible for his former agent’s failure to lodge his visa application in a timely manner. The applicant submitted all of the necessary supporting documentation for the visa application with sufficient time to allow his former agent to lodge the visa application within the required timeframe.

    ·The applicant’s former agent made an error in calculating the time allowed for the applicant to lodge the visa application. The agent has provided the applicant with an apology, despite the applicant requesting one.

    ·The applicant has been employed on  full-time basis as a painter by A1 Finish Painting Pty Ltd since 2020. The employer is in the process of lodging a subclass 482 nomination application for the applicant. The applicant’s current employment depends on him retaining his work rights and being able to remain in Australia.

    ·The applicant has always been compliant with his visa conditions and has no criminal history.

    ·The applicant has been the victim of his former agent’s negligence.

21. The applicant submits:

    Although Practice Direction ‘Conducting Migration and Refugee Reviews’ states at 8.2 ‘As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters’ In this case, we are seeking to provide the Tribunal with sufficient information for a de novo review and we have attempted to address the applicant’s “No Control” position at the time of application.

22. The applicant further submits that the Tribunal exercise its discretion to remit the matter with the direction that the applicant meets the criteria for the grant of a subclass 485 visa. In the alternative the applicant requests that the Tribunal’s determination of the applicant’s review application be postponed which will enable him to obtain an approved nomination from another employer, lodge a subclass 482 visa application and be granted the visa.

    Findings

23. Based on the evidence before it (including the applicant’s oral evidence) the Tribunal finds that the applicant did not complete the course work for his Certificate III in Painting and Decorating in the period of six months immediately before the day the application was made. The Tribunal is therefore not satisfied the applicant met the Australian study requirement in the 6 months immediately before the date of the visa application.

24. The Tribunal accepts that the applicant gave instructions to his former migration agent and provided the relevant supporting documentation to enable his agent to lodge the visa application on his behalf.

25. The Tribunal further accepts that the applicant’s former agent made an error in calculating the time in which the application could be made and as a consequence the applicant completed the course work for his Certificate III in Painting and Decorating more than six months immediately before the day the visa application was made and does not meet the requirements of cl 485.221(a).

26. The applicant is satisfied that that the applicant met the requirements for the grant of the visa regarding English language skills, information from a relevant authority about his criminal history and private health insurance cover.

27. However, the Tribunal does not accept that it has a discretion to remit the matter with finding that the applicant meets the criteria for a subclass 485 visa in circumstances where it has found he does not meet the requirements of cl 485.221.

28. The Tribunal has considered the applicant’s request for a postponement of the Tribunal’s determination of the review application. It notes that his prospective employer is yet to obtain an approved nomination for a position for the applicant who is yet to apply for a subclass 482 visa. The Tribunal is not prepared to adjourn its decision in the matter in circumstances where it may take many months for a decision to be made in respect of these applications and their likelihood of success cannot be predicted.

29. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied that the applicant has been given a fair opportunity to give evidence and present arguments to the Tribunal.

30. Accordingly, the Tribunal does not consider it appropriate to postpone its decision in the matter.

31. The Tribunal finds that applicant does not meet cl 485.221(a) and therefore does not satisfy the requirements of cl 485.221.

    Conclusion

32. Based on 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

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

    Amanda Mendes Da Costa
    Member