Ahmed (Migration)

[2022] AATA 910

Ahmed (Migration) [2022] AATA 910 (12 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tahmi Ahmed

CASE NUMBER:  1910433

HOME AFFAIRS REFERENCE(S):          BCC2019/286899

MEMBER:Wan Shum

DATE:12 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2022 at 4:18pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work Stream – completed the course after the visa application was made – applicant didn’t meet the Australian study requirement immediately before the day the application was made –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15 , 1.03, 2.26, Schedule 2, cl 485.231

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 8 April 2019 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 January 2019. 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 (Cth) (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 finding that the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because she completed the course after the visa application was made.

4. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant appeared before the Tribunal on 27 October 2021 by videoconference using MS Teams to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The issue in this case is whether the applicant’s study for the specified qualification met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

10. 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,

    ·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.

11. ‘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)).

12. The completion letter issued by Macquarie University dated 6 February 2019 states that the applicant qualified for the award of Master of Accounting (Professional) on 5 February 2019. The applicant submitted a form to the Department notifying that an incorrect answer had been given when making the visa application. The information which was identified as being incorrect was the completion date of his degree, which he changed from 20 January 2019 to  5 February 2019. The reason given for the incorrect answer was that his student visa was to expire on 31 January 2019 but as he had already completed his Master of Accounting but the completion letter was not issued by the time he made the application.  The delegate found that the course was completed on 5 February 2019 which was after the visa application was lodged and concluded that the Master degree could not be used by the applicant to satisfy the Australian study requirement.

13. Prior to the hearing, the applicant provided evidence that he submitted a grade appeal on 9 January 2019 in respect of one subject AFIN858 that was later revised. He had thought it might be finalised before the end of the month. It is clear from the email correspondence between the University and the applicant however that it was not finalised until on or after 1 February 2019.

14. During the hearing, the Tribunal referred to the date of completion and the applicant’s appeal, but that the outcome of the appeal was not known until after the visa application was made which was consistent with the dates on his completion letter and academic transcript. The applicant said that he had received his results in December 2018 but knew there was something wrong as he thought he had passed the exam for that subject. He had to wait until January 2019 to check his exam sheet because the University was closed over Christmas. He explained that he was not able to check until 9 January 2019 and then he immediately appealed. The applicant said he had requested priority and explained his situation to the University but a lot of staff were on leave. He tried to apply for a new eCoE but the University had stopped offering that subject so they would not issue one. He thought he would get it before 31 January 2019 and was planning to upload the completion letter after. He said it was not his fault. The Tribunal acknowledged the steps he had taken but explained that completed meant when the educational institute finds that all the requirements for the award of the qualification is met. The applicant indicated that he understood and asked for more time to contact the University again. The Tribunal agreed and allowed until 10 November 2021, however nothing further was received from the applicant.

15. The Tribunal then contacted Macquarie University regarding his grade appeal request and was advised on 6 December 2021 that Anne Ross-Smith, the Associate Dean Curriculum and Quality Assurance, revised the applicant’s mark on 31 January 2019.

16. This is the same date that the applicant lodged the application for the visa. Given this information, it appears to the Tribunal that the applicant could not have met the academic requirements for the award of the degree, and therefore completed the degree, by 30 January 2019, being the day before the visa application was lodged.

17. The Tribunal wrote to the applicant seeking his comments on and response to the information received from the University but nothing has been received to date.

18. While the University did not consider that the applicant had completed the course until 5 February 2019, in this case, there was a discrete decision that the applicant had passed all his subjects for the award of the qualification on 31 January 2019, when he was found by the University to have passed the subject he had initially been assessed as failing. While it appears to the Tribunal that there was no further academic effort by the applicant after his results were known in December 2018, there was clearly an evaluation by the Associate Dean Curriculum and Quality Assurance which was made on 31 January 2019, which means that this is the earliest date that he could have met the Australian study requirement. This is because the decision by the Associate Dean Curriculum and Quality Assurance could have been that he did not pass the subject, so it could not be said that he had completed the qualification and met the Australian study requirement prior to 31 January 2019 until that decision had been made to revise his mark. As the applicant lodged the application on the same date, the Tribunal cannot find that he met the Australian study requirement immediately before the day the application was made.

19. The Tribunal does not have any discretion in respect of this criterion and finds that the applicant did not meet the Australian study requirement in the period of 6 months ending immediately before the day the application was made. This means that the applicant does not meet cl 485.231(3).

20. Given this, the Tribunal finds that the applicant does not meet cl 485.231. As the applicant does not satisfy one of the criteria for the grant of a Subclass 485 visa in the Post-study work stream, the decision under review will be affirmed.

    DECISION

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

    Wan Shum
    Member