Srithila (Migration)

[2024] AATA 315

Srithila (Migration) [2024] AATA 315 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nontawat Srithila
Mr Pawaritt Thippayanon

CASE NUMBER:  2117987

HOME AFFAIRS REFERENCE(S):          BCC2020/2182782

MEMBER:Karen McNamara

DATE:22 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 22 February 2024 at 10:11am

CATCHWORDS 
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – Graduate Work stream – Diploma of Hospitality Management was completed more than six months before the application was made – applicant lodged his application after the 6 months as stipulated by cl 485.221(a) of Schedule 2 – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 1.15, 1.03, Schedule 2, cls 485.221, 485.311

Education Services for Overseas Students Act 2000

CASES

Hasran v MIAC [2010] FCAFC 40

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 12 November 2021, to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 August 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 decision record provided to the Tribunal by the applicants, records that on 12 November 2021, the delegate refused to grant the visas because the first named applicant Mr Nontawat Srithila (the applicant), did not satisfy cl 485.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant’s qualifications of Diploma of Hospitality Management and Certificate IV in Commercial Cookery could be used to satisfy the Australian study requirement, as the Diploma of Hospitality Management was completed more than six months before the application was made.

4. The delegate also found that the second named applicant, Mr Pawaritt Thippayanon could not be granted a Subclass 485 visa, as he did not meet the secondary visa criterion (cl.485.311), requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 485 visa.

5. The applicants applied to the Tribunal on 30 November 2021, for review of the delegate’s decision. The review application was accompanied by a copy of the delegate’s decision and a copy of the applicants’ passport biodata pages. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

6. On 5 February 2024, the Tribunal invited the applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 12 March 2024 at 11:30 am.

7. On 5 February 2024, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, (dispatched by email to the authorised recipient/representative), inviting the applicants to provide probative evidence to address the criteria of cl.485.221 as claimed in the application for a Temporary Graduate (Graduate Work) (Subclass 485) visa, lodged with the Department on 27 August 2020.

8. The invitation was sent to the applicants at the last email address provided in connection with the review. The invitation advised that, if the information was not provided in writing by 19 February 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.  The letter stated “On 5 February an invitation to attend a hearing scheduled for 12 March 2024 was sent to you. If you fail to respond to this letter, 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.”

9. At the time of this decision, the Tribunal has received no response from the applicants or an authorised representative of the applicants to the Tribunal’s letter of 5 February 2024 nor the invitation to attend the hearing. The applicants have not provided information within the prescribed period and no extensions have been requested or granted.

10. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. Accordingly, as the applicant failed to provide the information requested within the prescribed period, the applicants have lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

12. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support their application for review.

13. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

14. The Tribunal considered whether, in the circumstances of this case, the information that the first named applicant meets the relevant requirements of cl.485.221of Schedule 2 to the Regulations, is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicants.

15. The Tribunal is satisfied that the invitation to provide information was sent to the authorised recipient at the correct email address as provided to the Tribunal. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicants have not made contact with the Tribunal to indicate that the information is forthcoming.

16. The Tribunal has had regard to the fact that the application was refused by the Department on 12 November 2021. The Tribunal therefore observes that the applicant has been aware for over two years of the reasons for the application refusal. Since lodging the review application, the applicants have not provided additional information in support of their review application and no request for an extension of time within which to respond to the Tribunal’s request for information or reasons provided for lack of response, have been provided. 

17. The Tribunal has also taken into account the fact that the implications of not providing the information requested in the Tribunal’s invitation, were set out in the letter of 5 February 2024.

18. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicants, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicants more time in which to demonstrate that the first named applicant meets the requirements in cl 485.221 of schedule 2 to the Regulations.

19. In the circumstances, the Tribunal has decided to cancel the scheduled hearing for 12 March 2024 and proceed to make its decision on the available evidence.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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, unless limited circumstances apply, 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(1)).

22. The issue in the present case is whether the applicant meets those requirements.

23. Information before the Tribunal shows that at the time of application to the Department, the applicant stated that he completed the following studies in Australia:

    ·Diploma of Hospitality Management attained from William Angliss Institute between 1 July 2019 and 2 December 2019.

    ·Certificate IV in Commercial Cookery attained from William Angliss Institute between 5 February 2018 and 1 July 2019.

    Does the applicant meet the Australian study requirement?

24. 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.

25. ‘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.

26. The Tribunal is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision. It is the responsibility of the applicant to provide substantial and verifiable evidence to demonstrate that they meet the relevant criteria for approval of the nomination. In undertaking its assessment, the Tribunal is aware that the concept of ‘onus of proof’ is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as necessary to enable a decision maker to establish the relevant case, and in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decision maker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.

27. At the time of application, the applicant declared he had completed a Certificate IV in Commercial Cookery attained from William Angliss Institute on 1 July 2019 and completed a Diploma of Hospitality Management attained from William Angliss Institute on 2 December 2019. It was on the basis of this information the delegate found that the applicant’s studies were completed more than 6 months ending immediately before the day the application was made on 27 August 2020.

28. The Tribunal has viewed information contained on the Department’s file which includes a certificate of attainment issued by William Angliss Institute dated 4 December 2019 which states the applicant fulfilled the requirements for Diploma of Hospitality Management on 2 December 2019. The file also includes a certificate of attainment issued by William Angliss Institute dated 1 July 2019 which states the applicant fulfilled the requirements for Certificate IV in Commercial Cookery on 1 July 2019.

29. There is no evidence before the Tribunal to suggest the applicant disputes the date of his most recent studies in Diploma of Hospitality Management as 2 December 2019.

30. The Tribunal therefore accepts having afforded consideration to the entirety of the information before it, this as the date the applicant was found to have met the academic requirements, and thus ‘completed’ the course within the meaning of reg 1.15F.

31. Based on available evidence, the Tribunal is satisfied that the applicant completed a Certificate IV in Commercial Cookery at William Angliss Institute on 1 July 2019 and completed a Diploma of Hospitality Management on 2 December 2019. William Angliss Institute is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) to provide courses to overseas students as required by reg 1.03. The course was completed in a total of at least 16 calendar months as a result of at least 2 years academic study and the course was conducted in English. The course was conducted in Australia and the applicant held a visa permitting the relevant study during this period. Accordingly, the Tribunal finds that the applicant satisfies the Australian study requirement.

32. Having regard to available evidence, the Tribunal finds that the applicant satisfied the Australian study requirement on 2 December 2019 and, as such, he had until 1 June 2020 to lodge his Subclass 485 visa application in the Graduate Work stream. As he did not lodge his Subclass 485 visa application until 27 August 2020, the Tribunal finds that the applicant lodged his application after the 6 months as stipulated by cl 485.221(a) of Schedule 2 to the Regulations.

33. Accordingly, the Tribunal finds that the applicant does not meet cl 485.221 of Schedule 2 to the Regulations.

34. As the first named applicant is found not to have met the prescribed criteria for a subclass 485 visa, the second named applicant, Mr Pawaritt Thippayanon as a member of Mr Nontawat Srithila’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.485.311.

35. On the basis of the above findings, the applicants do 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

36. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Karen McNamara
    Member