Tandiarak (Migration)

[2019] AATA 3077

Tandiarak (Migration) [2019] AATA 3077 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Axel Jeconiah Christopher Tandiarak

CASE NUMBER:  1728896

HOME AFFAIRS REFERENCE(S):          BCC2017/2953233

MEMBER:Karen McNamara

DATE:29 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2019 at 11:16am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – qualification not completed 6 months ending before visa application date – financial issues delayed application – working in related industry to qualification – tribunal has no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.231, rr 1.03, 1.15F(1)

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 Immigration and Border Protection on 30 October 2017 to refuse to grant Mr Axel Jeconiah Christopher Tandiarak (the applicant) a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 August 2017. 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 (the Regulations), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.231.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the Australian study requirement had been completed in the period of 6 months ending immediately before the day the visa application was made: cl.485.231(3).

4. The applicant appeared before the Tribunal on 15 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Agustinus Tandiarak and Mr Patrick Orth. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Clause 485.231 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.

   Does the applicant hold a specified qualification?

6. Subclause 485.231(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. In this case, the applicant holds a Bachelor of Aviation (Management) from the University of New South Wales, which is a qualification specified in that instrument.

7. Accordingly, cl.485.231(1) is met.

   Was the applicant’s qualification conferred or awarded by a specified educational institution?

8. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031.

9. In this case, the applicant’s qualification was conferred or awarded by the University of New South Wales which is an educational institution specified in that instrument.

10. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

11. Subclause 485.231(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.

12. Under r.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.

13. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

14. At the hearing the applicant told the Tribunal that he completed his Bachelor of Aviation (Management) on 2 December 2016 and lodged his visa application on 17 August 2017. The applicant provided evidence that due to his father not having sufficient funds available to pay for his visa application; he was unable to submit the application before the 17 August 2017.

15. The applicant advised that he intended to produce documentation to support his claim that his father had competing financial commitments at the time the applicant was required to make his visa application. The Tribunal advised the applicant that it was not acceptable producing voluminous documentation at the time of hearing affording the Tribunal limited opportunity to examine the documents and reminded the applicant that the documents should be relevant to his matter. The Tribunal notes the applicant lodged his review application with the Tribunal 22 November 2017 and on 1 March 2019, the Tribunal sent him an invitation to attend a hearing. Prior to the hearing on 15 April 2019, the applicant had not provided submissions to the Tribunal.   

16. The Tribunal notes the applicant at hearing produced the following documents which were subsequently examined by the Tribunal:

    ·Emails dated 9 January 2017, 19 January 2017 and 23 January 2017 between applicant and J. Haryanto – Migration Agent

    ·Emails dated 28 June 2017, 29 June 2017 between applicant and J. Haryanto –Migration Agent

    ·Academic Statement from UNSW

    ·Enrolment Statement from UNSW

    ·Extract from banking records – Agustinus Tandiarak.

17. The Tribunal heard evidence from the applicant’s father Mr Agustinus Tandiarak, who confirmed the applicant’s claims that he did not have the necessary funds available at the time his son’s visa application was to be made.  Mr Patrick Orth gave evidence as to the applicant’s character and work performance.

18. The Tribunal has taken into account the evidence before it including the documentation provided by the applicant at hearing and his claims that due to lack of finances he was unable to lodge his application within the legislative timeframe. The Tribunal acknowledges that the applicant sought to engage a Migration Agent and accepts on the evidence before it that his father was unable to provide him with the Visa application fee. The Tribunal further notes on the basis of Mr Orth’s evidence that the applicant is employed in the Aviation industry and is considered to be of good character. However while the Tribunal is sympathetic to the applicant’s position this is not a matter in which the legislation provides discretion. The Tribunal explained this to the applicant at the hearing.

19. On the evidence before it the Tribunal finds that the applicant completed his Bachelor of Aviation (Management) on 2 December 2016 and lodged his visa application on 17 August 2017, therefore he did not meet the requirements of cl.485.231(3) in that he did not complete his qualification within the period of 6 months ending immediately before the day his application was made.

20. The Tribunal therefore finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.

21. Accordingly, cl.485.231(3) is not met.

22. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl.485.231. 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

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

    Karen McNamara
    Member