1503687 (Migration)

[2016] AATA 3917

1503687 (Migration) [2016] AATA 3917 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marie Sharonne Permall
Mr Somanaden Permall
Master Shawn Gavin Permall

CASE NUMBER:  1503687

DIBP REFERENCE(S):  BCC2015/140910

MEMBER:Lisa Lo Piccolo

DATE:16 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 16 May 2016 at 1:11pm

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 on 4 March 2015 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 January 2015. 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 (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 visas because the first named applicant (the applicant) did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian study requirement in the period of 6 months immediately before the date of the application was made. A copy of the delegate’s record of decision was provided to the Tribunal by the applicant.

4. The applicants appeared before the Tribunal on 16 November 2015 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 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 preceding the day the visa application was made (cl.485.221); and secondly, 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). The issue in the present case is whether the applicant meets cl.485.221.

Does the applicant meet the Australian study requirement?

1. 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; 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.

2. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.1.15F(2)). 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 ((IMMI 09/040).

3. The applicant has provided evidence that she completed a Diploma of Children’s

Services (Early Childhood Education & Care) from Chisholm Institute of TAFE. Documents provided confirm that she also completed a Certificate III in Children’s Services on 31 December 2013.

1. Cl.485.221 provides that the primary applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.  This means, that since the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the sub class 485 application was made.  The date of completion of the eligible qualification is the date of notification that all academic course requirements were met.  The critical date, therefore, is the date on which the results of the applicant's final exams or notice of completion of the course were available or published.  This is the date which triggers the 6 month period during which the applicant may apply for the subclass 485 visa.

2. According to the delegate’s decision record which was provided to the Tribunal by the applicant, the subclass 485 visa application was accompanied by supporting evidence of the applicant’s most recently completed qualification, namely a Certificate of Diploma of Children's Services (Early Childhood Education & Care), issued on 30 June 2014. The Department states in its decision that the information is confirmed by records provided by the Provider Registration and International Student Management system (PRISMS). The primary applicant lodged a Temporary Graduate Work Stream (VC-485) visa on 14th January 2015.  They conclude that the applicant does not satisfy cl.485.221 because the time between the date of the applicant’s most recently completed qualification and the date the application was made is greater than 6 months.

3. The applicant contends that a letter dated 15 July 2014 from the course provider which congratulated her on achieving success in the course is her notification of course completion.  She contends further that she did not receive any other notification from the course provider and the letter congratulated her on completing the course.  The representative in his submission referred to the Department’s policy which states that evidence of the completion date could be notification of final exam results in a letter to the applicant.

4. Having considered all available evidence including the representative’s submissions

dated 12 November 2015 and the applicant’s oral evidence, on the basis of the records
provided by PRISMS, the Tribunal is satisfied that the applicant completed her Diploma of Children’s Services (Early Childhood Education & Care) on 30 June 2014. This was the date, according to the university, at which it determined that it was satisfied that the appellant had completed the course requirements. This is therefore the date upon which the six calendar month period for filing the visa application commences.   As noted above the visa application was filed on 17 February 2015.  Accordingly, the course was not completed within the 6 months immediately before the application was made

1. The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.

2. On the basis of 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

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

Lisa Lo Piccolo
Member