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0900133 [2010] MRTA  824  (9 April 2010)

Last Updated: 19 April 2010

0900133  [2010] MRTA 824  (9 April 2010)


DECISION RECORD

APPLICANT: Mr Trong Bach Ngo

MRT CASE NUMBER: 0900133

DIAC REFERENCE(S): BCC2008/21040

TRIBUNAL MEMBER: Kira Raif

DATE: 9 April 2010

PLACE OF DECISION: Sydney

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

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 Citizenship to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
  2. The applicant applied to the Department of Immigration and Citizenship for a Skilled (Residence) (Class VB) visa on 18 August 2008. The delegate decided to refuse to grant the visa on 2 January 2009 and notified the applicant of the decision and his review rights by letter dated 2 January 2009.
  3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.886.211of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made
  4. The applicant applied to the Tribunal on 8 January 2009 for review of the delegate’s decision. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. The Skilled (Residence) (Class VB) visa is a permanent visa for: eligible overseas students with Australian qualifications following at least two years study; for holders of certain temporary visas with skills in demand; and for eligible provisional visa holders who have lived for at least two years and worked for at least one year in a Specified Regional Area in Australia. At the time the visa application was lodged, the Skilled (Residence) (Class VB) visa class contained the following subclasses: Subclass 885 (Skilled – Independent), Subclass 886 (Skilled – Sponsored) and Subclass 887 (Skilled – Regional).
  2. The applicant has made claims relevant to Subclass 886 and will be assessed accordingly. If the Tribunal finds that the applicant does not satisfy the criteria for this Subclass, the criteria for the other Subclasses will then be considered.
  3. The criteria for a Subclass 886 (Skilled - Sponsored) visa are set out in Part 886 (Skilled - Sponsored) of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
  4. The primary criteria to be satisfied at the time of application for a Subclass 886 (Skilled - Sponsored) visa are as follows:
  5. The issue in the present case is whether the applicant satisfied the two year study requirement in the period of 6 months ending immediately before the day on which the application was made.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
  2. The applicant was born in October 1981 and is a national of Vietnam. He first travelled to Australia in March 2006 as a holder of a Student visa and he was subsequently granted a number of other visas in Australia.
  3. The applicant applied for the Class VB visa on 18 August 2008. The applicant enclosed with his application various personal documents, his skills assessment for the nominated occupation of a Cook (ASCO 4513-11), evidence relating to his study in Australia, IELTS test results, evidence relating to sponsorship and other material.
  4. The applicant stated on the application form that between May 2006 and June 2008 he completed an Advanced Diploma of Hospitality Management at the Australian Institute of Commerce and Language (AICL). The applicant enclosed with his application a copy of this qualification, which was issued to him in March 2008. He also enclosed a letter of completion, which states that the course commenced in May 2006 and ended on 13 June 2008 and that the ‘actual end date’ is 21 December 2007 The applicant also enclosed an academic transcript for a Certificate II in Hospitality which he appears to have undertaken in 2007.
  5. On 2 January 2009 the delegate decided to refuse to grant the visa to the applicant. The delegate noted that the applicant had completed the Advanced Diploma of Hospitality Management on 21 December 2007 and lodged his visa application on 18 August 2008. The delegate found that the applicant had completed his course more than 6 months prior to the lodgement of his application and, therefore, that he did not meet cl. 885.211.
  6. The applicant sought review of the delegate’s decision on 8 January 2009. On 18 January 2010 the Tribunal wrote to AICL pursuant to s. 359 of the Act seeking information about the date when the applicant had completed his course. The Tribunal referred to the letter of completion issued to the applicant, which indicated the course end date as June 2008 and the ‘actual end date’ on 21 December 2007 and sought clarification as to why these two dates were different. The education provider replied on 25 January 2010 by stating that the course was registered on CRICOS for 110 weeks and was due to be completed in July 2008. As the applicant had fast-tracked his studies, his actual studies were completed in December 2007.
  7. On 27 January 2010 the Tribunal wrote to the applicant pursuant to s. 359A of the Act inviting his comments on, and response to, the information which the Tribunal considered may be a reason or part of the reason for affirming the decision under review. The Tribunal referred to the information received from the education provider and the fact that the applicant applied for the visa in August 2008. This was said to be relevant as it may indicate that he did not meet the two year study requirement in the six months immediately before his application for the visa was made, as required by cl. 886.211.
  8. The applicant replied on 5 March 2010. He stated that when he finished the course on 21 December 2007, he went on holiday until 24 February 2008 and until that date he did not know that he had finished his Advanced Diploma of Hospitality Management because when he came back, he did something to finish his education. After a few weeks, he got all his documents from the school and the letter from the school shows that he finished on 21 December 2007. He applied for the Skilled visa on 18 August 2008 and had to wait for the IELTS results of the test he undertook on 27 July 2008. He thinks he finished the course on 24 February 2008 and applied for the Skilled Residence visa. The applicant enclosed a copy of the visa page of his passport.
  9. The applicant appeared before the Tribunal on 1 April 2010 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The oral evidence before the Tribunal is summarised below.
  10. The applicant said that since coming to Australia he completed a Cookery course at AICL between May 2006 and June 2008. He also studied for a Certificate III of Commercial Cookery between February and December 2007.
  11. The Tribunal noted that the letter of completion from AICL, which he provided with his application, showed that the course end date was June 2008 but that he had completed the course in December 2007. The applicant said that when he applied for permanent residence, he looked at the date when he received the letter, which was March 2008. The Tribunal noted that the information from AICL indicated that he was meant to finish the course in June 2008 but he had fast-tracked the course and finished it in December 2007. The applicant said that he had finished but he had to do ‘a little assignment’ The Tribunal asked the applicant to explain. He said that he did not know what the actual course end date was. He was on holidays for two months and when he returned, everything was done. The Tribunal pointed out that he would have finished his examinations and his studies before going on holidays. He said that the last day of the school was 21 December. The college had not advised him but he had to complete all assignments before 21 December. The Tribunal asked him what assignments he had to do after he returned from holidays. He said that he had not finished one of the subjects, a Management subject, which he had to do after he came back. The Tribunal asked him whether he had an academic transcript which showed that he had completed that subject in the 2008 semester. He said that he did not have any evidence of that. When he applied for permanent residence, he thought he finished on 6 March, which is the date the transcript was issued. The Tribunal noted that the date when he finished the course is not the date when the academic transcript is issued but the date when he finished all the academic requirements, including assignments, etc. The Tribunal noted that AICL informed the Tribunal that he finished the course in December 2007 and not in 2008. The Tribunal noted that if it were to find that he had finished the course in December 2007, as AICL suggests, that it may find that his visa application, which was lodged in August 2008, was made more than six months since he had completed the course and he would not meet one of the requirements for the grant of the visa for which he had applied. The applicant said that he did not have any papers.
  12. The applicant suggested that the College may have information that would show that he completed the course in 2008. The Tribunal asked him why he had not approached the College in the past to seek that evidence, particularly as his application was refused more than one year ago and the Tribunal’s s. 359A correspondence was sent to him more than two months earlier. The Tribunal also pointed out that AICL confirmed in its letter of completion that he completed the course in December 2007 and it has confirmed that information to the Tribunal. The applicant said that his classes finished in December 2007 but he had no evidence that he done something in 2008 and he was not sure whether the college would have that information. He said that he failed one subject and had to do an assignment in 2008. That took about one week but he has no evidence. The Tribunal allowed the applicant more time to approach AICL to obtain evidence of his studies in 2008.
  13. On 6 April 2010 the applicant presented to the Tribunal a further statement from AICL, dated 1 April 2010, which indicates that the applicant completed the Advanced Diploma of Hospitality Management at AICL. It states that the actual end date on the completion letter reflects the day the applicant last attended class and the completion of the course had been reported on PRISMS on 4 February 2008.

FINDINGS AND REASONS

  1. When making the application, the applicant stated on the application form that he was resident in Cabramatta NSW, postcode 2166. The Tribunal finds that this postcode was not specified by the Minister in an instrument in writing under item 6A1001 of Schedule 6A. They are also not specified by the Minister in an instrument in writing under item 6701 of Schedule 6. The Tribunal finds that this is not a ‘specified regional area’ as defined in cl. 887.211(a) or (b). The Tribunal is not satisfied that the applicant lived in a specified regional area for a total of at least 2 years at the time when the application was made. The Tribunal is not satisfied that the applicant meets cl. 887.212.
  2. The main issue in this case is whether the applicant met the two year study requirement in the period of 6 months ending immediately before the day on which the application was made. The ‘two years study requirement’ in r. 1.15F relevantly requires the applicant to satisfy the decision-maker that he had completed a particular qualification.
  3. The applicant presented with his application a letter of completion, issued by the AICL, which indicates that the course end date for the Advanced Diploma which he undertook at that institution was 13 June 2008 and that the ‘actual end date’ was 21 December 2007. The Tribunal sought further clarification from the education provider and was informed that the course was registered to be completed in June 2008 but as the applicant had fast-tracked the course, he completed the course in December 2007.
  4. The applicant argues that had to complete one assignment in February 2008 and that when he went on holidays in December 2007, he did not know that he had completed the course. He also noted that his transcript was issued in March 2008. The applicant had not presented any evidence of having to complete an assignment, or further study, after December 2007. Indeed, the information from AICL indicates that the applicant last attended his studies in December 2007, which appears as the ‘actual end date’ on the letter of completion and this is confirmed in the communication from AICL dated 22 January 2010 and 1 April 2010. The reference to February 2008 in the statement from AICL dated 1 April 2010 is a reference to when the completion was recorded on PRISMS but that would not have required any further study or other involvement by the applicant. For the same reason, the Tribunal does not consider the date when the academic transcript was issued to be relevant.
  5. The Tribunal has had regard to the reasoning in Venkatesan v Minister for Immigration & Anor [2008] FMCA 409 where Burchardt FM stated at [15]-[17]:
In my view, the proper meaning to be ascribed to the item is that you complete the academic requirements for a course when you achieve the necessary results or credits to enable you to be awarded the relevant degree or diploma...
To adopt what I hope is a commonsense approach, there was nothing more for the Applicant to do of an academic nature after 2 August 2006. What was required, admittedly, were certain steps, but they were purely administrative steps that did not require any form of academic effort by Mr Venkatesan nor any evaluation of any such effort by the university.
  1. The Tribunal is mindful that Venkatesan was concerned with a different legislative context that related to determining the validity of the application and, more significantly, in circumstances where the term ‘completed’ was defined in the legislation as meeting course requirements. Nevertheless, the Tribunal finds the reasoning of the Federal Magistrate Court to be persuasive.
  2. The Tribunal finds, on the basis of the statements from AICL provided to the Tribunal in January 2010 and April 2010, and the applicant’s letter of completion which he provided with the application, that the applicant had completed all of his classes and examinations before 21 December 2007 and that he last attended the course on that date. At that time the applicant would have achieved the necessary results and credits to enable him to qualify for the award of the Advanced Diploma. What was required in the period between December 2007 and February when the completion was recorded on PRISMS, or March 2008 when the academic transcript was issued, was purely an administrative task by the education provider of recognising the completion of the course. There was nothing further for the applicant to do. Thus, the Tribunal finds that the applicant had completed the qualification, for the purpose of cl. 885.211 and cl. 886.211, on 21 December 2007.
  3. The application for the visa was made in August 2008. The Tribunal is thus not satisfied that the applicant satisfied the 2 year study requirement in the 6 months immediately before the application was made. The Tribunal is not satisfied that the applicant meets cl. 885.211 and cl. 886.211.

CONCLUSIONS

  1. For the reasons given above the Tribunal finds the applicant does not satisfy the requirements of cl. 886221 and cl. 885.221
  2. In respect of the other visa subclass of the visa class sought, there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

DECISION

  1. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Kira Raif
Member

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