Yates (Migration)

[2023] AATA 1853

Yates (Migration) [2023] AATA 1853 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jordan Yates

CASE NUMBER:  2118168

HOME AFFAIRS REFERENCE(S):          BCC2020/2205031

MEMBER:Alison Mercer

DATE:28 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 28 March 2023 at 10:41am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – review application out of time – invalid notification – Australian study requirement – family bereavements – applicant held a previous subclass 485 visa – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 347, 494B
Migration Amendment (COVID-19 Concessions) Regulations 2020
Migration Amendment (Temporary Graduate Visas) Regulations 2020
Migration Regulations 1994, Schedule 2, cls 485.211, 485.232, 485.233; r 4.10

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 29 October 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 31 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 delegate refused to grant the visa because the applicant did not satisfy cl 485.211 of Schedule 2 to the Regulations because he had previously held a subclass 485 visa as the primary visa holder.

4. As noted above, the Tribunal received a review application from the applicant on 1 December 2021.

5. Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal wrote to the applicant on 3 December 2021 to advise that it appeared that the applicant had not made a valid review application, as he had not lodged his review application within the prescribed timeframe. The Tribunal noted that the applicant had lodged his review application on 1 December 2021, but it appeared that the last date for valid lodgement was 19 November 2021. The applicant was invited to comment on this issue in writing by 17 December 2021.

7. On 15 December 2021, the Tribunal received the following response from the applicant via email:

   …

   I refer to the decision of the visa outcome dated 29 October 2021; I don’t believe the notification was valid.

   Since my application of the 485-visa dated 31^st of August 2020, I have been in contact with Home Affairs on numerous occasions as listed below:

   25^th October 2021

   10^th September 2021

   27^th May 2021

   26^th May 2021

   23^rd March 2021

   23^rd February 2021

   Throughout the processing period I requested updates on my application or if a decision had been made. I was told on several occasions that the application was in the processing time and that it could take from 6 to 9 months. I was later informed it could take up to 12 months and that 10% of cases dealt with could take upwards of 13 months.

   During my phone calls with Home Affairs, I asked which email address they had, they confirmed it was [Old Email Address], this was the email address that my application was registered to.

   I requested on more than once occasion that my contact be to be changed to [New Email Address] as I was unable to change the details on the immiaccount for [Old Email Address] as I did not have access this email account. My sister-in-law had the login details, and we were not on speaking terms.

   The most recent phone call I had with home affairs was on the 25^th of October 2021, 4 days prior to the decision being made, I had similar conversation with Home Affairs and was told that the application was still in the process period and again was informed to check my immiaccount for any correspondence.  As previously stated, I do not have access to the immiaccount for the email [Old Email Address] and therefore I was unable to view any correspondence from Home Affairs.

   I became aware of my application had been rejected through my sister in law eventually telling me a week after the 21 days was up that it had been rejected and that my bridging visa I was on during the processing time had also expired which was not the case.

   I would like to request an extension of time to gather evidence from the department records by obtaining a freedom of information request to collect call logs that I had with home affairs over the 14 months.

   …

8. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 October 2021 and dispatched by email to the email address provided by the applicant for correspondence when he lodged his review application on 31 August 2020, being [Old Email Address]. Normally, this would constitute valid notification by the Department and the applicant would be taken to have received the decision on the date that the email was sent (29 October 2021) pursuant to s.494C.

9. However, the applicant has asserted that after lodgement of his visa application, and prior to the Department decision, he notified the Department of a new email address that he wished the Department to use for correspondence, and that the Department failed to use this address. He identified 6 dates between May and September 2021 when he rang the Department and spoke with them, including about his preferred email address ([New Email Address]). He therefore argued that the Department’s notification of him on 29 October 2021 was invalid as the Department had not sent it to his updated email address [New Email Address], even though it had been notified to them prior to the Department’s refusal decision on 29 October 2021.

10. The Tribunal has reviewed information from the Department, in the form of an electronic record from its Integrated Client Services Environment (ICSE) system indicating that the applicant telephoned the Department on 27 May 2021 to check what address they held and to advise that it was outdated and that he had a new email address. It appears that there was then some confusion or difficulty in the applicant updating it himself online, due to the issues he referred to in his written submissions to the Tribunal above, to the effect that he had forgotten his immi account log on.

11. The Tribunal is satisfied from the above evidence that the applicant did notify the Department, as early as 27 May 2021, that he had a new email address – [New Email Address] – that he wished the Department to use for the purpose of receiving documents from the Department. Accordingly, the Tribunal finds that by using the email address [Old Email Address], which they had been advised was outdated, to send the refusal notification of 29 October 2021, the Department did not comply with s.494B(6)(d) of the Act, which requires that the Department sent the notification to ‘the last … electronic address…provided to the Minister for the purposes of receiving documents.’ The Department’s notification was therefore invalid, and this means that the time frame for lodgement of the applicant’s review application to the Tribunal did not start to run on that date. The Tribunal is satisfied that the applicant has made a valid review application as it finds that he did not lodge it outside the prescribed timeframe for doing so.

12. On 1 February 2023, the Tribunal wrote to the applicant to invite him to attend a hearing to be conducted by videoconference on 23 February 2023. He was requested to provide any supporting material for this case by 16 February 2023.

13. On 16 February 2023, the applicant provided a letter from friends, Denver and Marie Reid, dated 12 February 2023, and a screen shot from an immigration firm website referring to making an application for a second subclass 485 visa application.

14. In their letter, the Reid family noted that:

    …

    We are writing this letter to support our friend, Jordan Yates, in his endeavours to get his PR Visa.

    We have known Jordan for over eight years. We first met Jordan after he became friends with our son while working together at John Hughes on Welshpool Road, Kewdale.

    Jordan was only 18 years old at the time and had not long been in Perth. We were amazed at how independent and mature he was for his young age. We were instantly drawn to him with his fun-loving and respectful manner.

    Jordan has been living in our home for over five years after he needed a place to stay. We consider him as family, and joke about him being our adopted son.

    The past few years have been incredibly difficult for Jordan, having lost both his parents to terminal illnesses. His father passed away during Covid and unfortunately Jordan was not able to travel at the time. For his mum, thankfully Jordan was able to return to the UK recently and they were able to spend her final few days life together.

    Jordan’s dream has always been to work and live in Australia. He often speaks about his big dreams about settling here, marrying, having a family, and starting his own business. He is a hardworking, reliable, honest and determined young man. Jordan has attained many skills as a plasterer and in bricklaying. He is working in an industry that is screaming for more skilled workers – Building and Construction. Jordan is currently employed by Precision Texture Coating and has been working with them since 2018.

    Jordan is skilled, he is young, strong, healthy and he is a decent bloke – very likeable, and someone who can be depended on to lend a hand when needed. He possesses all the positive attributes that makes him a good candidate for eventually becoming a valued and contributor to our great country.

    We attest to Jordan’s good and upright character and know without a shadow of a doubt that he would be a positive and valued contributor to our country if he is granted a visa to remain in Australia.

    Please do not hesitate to contact us if you require us to provide further information to you. Our contact numbers are as follows:

    …

15. The screen shot is from the website and states, ‘You can apply for the Temporary Graduate (subclass 485) visa twice. Usually between 1 and 2 years depending on: the regional location of the educational institution that you graduated from that led to your first Temporary Graduate visa in the post-study work stream.’

16. The applicant appeared before the Tribunal by videoconference on 23 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence by videoconference from the applicant’s employer, Mr Bryn Standford, co-director of Precision Texture Coating Pty Ltd.  

17. The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, given he resides in Perth, Western Australia, and the Presiding Member is based in the Tribunal registry in Melbourne, Victoria. 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 videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

18. The applicant queried why he was unable to apply for a second subclass 485 visa application, particularly as he had received verbal advice from the Department suggesting that he could do so, so long as it was 1 or 2 years after the grant of the initial subclass 485 visa. The Tribunal discussed with the applicant and Mr Standford its review of the relevant legislation, which indicated that it was possible, in certain circumstances, to apply for a second subclass 485 visa in the Post Study Work stream, but not in the Graduate Work stream (the stream in which the applicant had applied). The Tribunal said that no reason for this was given in the Regulations themselves, but the rationale was possibly set out in the Explanatory Memorandum to those Regulations.

19. Mr Standford confirmed that the applicant had been employed in his business, Precision Texture Coating Pty Ltd, for nearly 6 years, working part time when studying at TAFE and full time since he was granted his original subclass 485 visa. Mr Standford told the Tribunal that the applicant was a valued employee, and a personal friend, and he confirmed that there is an ongoing shortage of Plasterers and Bricklayers (the roles undertaken by the applicant in Mr Standford’s business) in Western Australia and nationally. He also told the Tribunal that he had made some preliminary investigations into whether the business could sponsor the applicant for a subclass 482 visa, but that they both thought it would be preferable if he were able to be granted a second subclass 485 visa.

20. The Tribunal discussed with the applicant and Mr Standford its view that it did not appear that the applicant could meet the requirements for a second subclass 485 visa in the Graduate Work stream, but it was possible that he might be able to apply for either an employer sponsored visa or a skilled visa. It suggested that they obtain advice from an experienced migration agent or lawyer about these issues, noting that it expected to make its decision in 2 to 4 weeks’ time.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Visa history requirements

22. Clause 485.211 (as it was at the time of the applicant’s visa application on 31 August 2020) requires that the applicant has not previously held a subclass 476 visa granted on the basis that the applicant satisfied the primary criteria for the grant of the visa, or a subclass 485 visa granted on the basis that the applicant satisfied the primary criteria for the grant of the visa (cl.485.211(a) and (b) respectively).

23. The Department’s records indicate that:

    ·the applicant has never held a subclass 476 visa and thus meets cl.485.211(a); and

    ·the applicant held a subclass 485 visa as the primary visa applicant between 3 November 2016 and 3 May 2018.

24. As discussed at hearing, the Tribunal finds that the applicant therefore cannot meet cl.485.211(b) and thus cannot meet cl.485.211 as a whole.

25. As also discussed at hearing, the Tribunal has considered whether the applicant is entitled to make a second subclass 485 visa application, despite having already been granted one as the primary visa applicant, given the screen shot he provided from an immigration firm suggesting that this may be possible.

26. The Tribunal acknowledges that from 20 January 2021, applicants who have held a subclass 485 visa in the Post-Study Work stream can, in specific circumstances, apply for and be granted a second subclass 485 visa in the Post-Study Work stream.[1]

    [1] Item 1229(4)(a)(v), cls 485.232 and 485.233 inserted by Migration Amendment (Temporary Graduate Visas) Regulations 2020 (Cth) (F2020L01639).

27. The Migration Amendment (Temporary Graduate Visas) Regulations 2020 (Cth) (the Amending Regulations) amended the Migration Regulations 1994 (Cth) (the Regulations) by:

    ·providing the Minister with a power to specify, in a legislative instrument, geographical areas in two categories – designated city or major regional centre and regional centre or other regional area.

    ·providing access to a second Subclass 485 (Temporary Graduate) visa (subclass 485 visa) in the Post-Study Work stream, valid for two years, for applicants who studied for their Australian qualification in a regional centre or other regional area, and who, while holding the first subclass 485 visa in the Post-Study Work stream, lived (worked or studied, if relevant) only in a regional centre or other regional area for at least two years immediately before applying for a second visa.

    ·providing that other eligible applicants in a designated regional area can be granted a second subclass 485 visa in the Post-Study Work stream, valid for one year. The practical effect is that applicants are eligible if they study anywhere in Australia other than Sydney, Melbourne or Brisbane for an Australian qualification that leads to the grant of the first subclass 485 visa in the Post-Study Work stream and, while holding the first visa, they live (work or study, if relevant) only in areas that are outside those cities for at least two years immediately before applying for the second visa.

    ·making technical amendments to clarify the operation of a concession inserted by the Migration Amendment (COVID-19 Concessions) Regulations 2020 to allow applications for Subclass 485 visas to be made from outside Australia during the concession period associated with the COVID-19 pandemic.

28. However, the salient point is that the amendments made by Schedule 1 of the Amending Regulations, which allow applications for a second subclass 485 visa in the Post-Study Work stream to be made, commenced on 20 January 2021.[2] As the applicant made his second subclass 485 visa application prior to this date, on 31 August 2020, these amendments do not apply in his case to overcome the clear wording of cl.485.211(b) set out above.

    [2] s 2, table item 2 of the Amending Regulations.

29. The Tribunal is sympathetic to the applicant’s situation, as it accepts that it would have been difficult for a lay person to appreciate that the information he received from the Department verbally and from the migration firm’s website might not apply in his case. It also acknowledges that the applicant is well settled in Perth and in long term employment with a business, working in trades which are currently in short supply in Western Australia.  However, the Tribunal is unable to take these matters into account as it has no power to waive the requirements of cl.485.211(b).

30. Given this, it follows that the applicant does not satisfy the criteria for the grant of a second subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Alison Mercer
    Member