Ali (Migration)

[2019] AATA 6908

Ali (Migration) [2019] AATA 6908 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jahanzeb Ali

CASE NUMBER:  1808473

HOME AFFAIRS REFERENCE(S):          BCC2018/922017

MEMBER:Karen Synon

DATE:5 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2019 at 12:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification completed in 6 months before the day application made – applied for visa after passing last unit but before receiving completion letter – student visa due to expire the day after application made – no discretion in relation to time of application criteria – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cl 485.231

CASE
Anand v Minister for Immigration & Citizenship (2013) 215 FCA 1050

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 23 March 2018 to refuse to grant 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 27 February 2018.[1] 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.

   [1]According to the time and date receipt on the bottom of the application form.  However the primary decision records the visa application date as 26 February.

3. The delegate refused to grant the visas because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because he did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made.

4. The applicant applied for review of the primary decision on 27 March 2018 and provided a copy of the department’s decision to the Tribunal.

5. Provided with the application for review was a submission that contended that the applicant applied for the visa without migration advice or assistance and, as soon as he saw that he had passed his last unit on 27 February 2018, he applied for the visa thinking he could attach his completion letter from Edith Cowan University (ECU) later.  He was not aware of the time of application criteria.  The applicant requested that the ECU Board of Examiners give him his completion letter earlier but they only gave him a letter stating he had passed the supplementary exam and he relied on this letter from ECU dated 28 February 2018.  If the applicant had known that the completion letter was critical for the subclass 485 visa, he would have considered other options rather than rushing through things on the last day of his student visa validity.  After the visa was refused the applicant went to ECU which issued another letter dated 10 April 2019 which confirmed that he passed his supplementary examination on 27 February 2018.  The applicant was only 5 days behind in submitting his completion letter and only lodged his 485 application on 28 (sic) February 2018 because his student visa was expiring that day.  The applicant was a genuine student, compiled with all his visa conditions and has spent a considerable time in Australia during which he successfully completed a Masters’ course.  The Tribunal’s attention was drawn to the authority of Anand v Minister for Immigration & Citizenship (2013) 215 FCA 1050 (‘Anand’) regarding the words “accompanied by”.

6. The following relevant documents were provided to the Tribunal before the hearing:

   ·A letter from Lorna Ali, Team Leader, Student Central, ECU dated 10 April 2018 stating that the applicant passed his supplementary examination for his final unit on 27 February 2018 and officially completed his Master of Engineering on 5 March 2018.

   ·A letter from Yvonne Mahon, Student Adviser, Student Central, ECU dated 7 March 2018 stating that the applicant completed all the requirements for his Master of Engineering on 5 March 2018.

   ·The applicant’s transcript of results dated 8 March 2018.

   ·A letter from Lorna Ali, Team Leader, Student Central, ECU dated 28 February 2018 stating that the applicant passed his supplementary examination for his final unit in the week commencing 19 February 2018 and that, subject to the Board of Examiners ratifying his course completion, it is expected that the applicant will complete his course in March 2018.

7. The applicant appeared before the Tribunal on 5 July 2019 to give evidence and present arguments.  The hearing was conducted via video with the applicant in Perth, Western Australia.

8. The applicant was represented in relation to the review by his registered migration agent.  His representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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’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. During the hearing the Tribunal explained that to be granted this visa the applicant must satisfy the Australian study requirement in the 6 months immediately before the application was made and that only degrees, diplomas or trade qualification can be used to satisfy this requirement.  The applicant confirmed that he applied for the visa on 27 February 2018.

13. The Tribunal noted that the issue on review is whether he completed a degree, diploma or trade qualification in the period of 6 months ending immediately before he applied for the visa on 27 February 2018.  However the evidence he has provided from ECU confirmed that he completed his qualification on 5 March 2018, after he applied for the visa.

14. Invited to give any evidence or submissions the applicant said he did not understand the rules.  His student visa was expiring on 28 February and that is why he had to rush and do the application; he did not want to stay illegally even for one day.  He took his last assessment on 25 February and his lecturer told him he had passed so he applied for the visa when he had zero points left to complete.  The letter he provided from ECU confirmed he had zero points left to complete and he thought that would be sufficient.  He understands now but did not understand when he applied.  It is important for him to get the work visa; it has already been one year since he applied.  Everywhere he applies for work he is refused because he does not have full work rights.

15. 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.

16. The applicant completed his Master of Engineering on 5 March 2018 which is not within the period of 6 months immediately before the application was made on 26 February 2018.

17. The Tribunal explained to the applicant at the hearing that it has no discretion in relation to time of application criteria and that as ECU had clearly and consistently confirmed that the date he completed his Master of Engineering was 5 March 2019 that it was of the view that he could not satisy cl.485.231(3).

18. On this basis the Tribunal finds that the applicant does not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application date and therefore does not meet cl.485.231(3).

19. In making this finding the Tribunal has considered all of the evidence before it including how the applicant did not understand the requirements, applied without migration advice and did so in a rush because his student visa was expiring and he did not want to be become “illegal”   While the Tribunal has some sympathy for the applicant’s situation, it is unable to find in his favour on the basis of these circumstances.  The Tribunal explained this to the applicant at the hearing.  The Tribunal notes the representative’s submission in relation to the authority of ‘Anand’ however the issue in this case is not interpretation of the words “accompanied by” but rather a time of application criterion.

20. As the applicant does not satisfy the requirements of cl.485.231(3) he does not satisfy cl.485.213 in its entirety.

21. 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

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

    Karen Synon
    Member