Bawa (Migration)

[2018] AATA 5776

Bawa (Migration) [2018] AATA 5776 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sonia Bawa
Mr Sandeep Singh Bawa
Master Manveer Singh Bawa

CASE NUMBER:  1723467

HOME AFFAIRS REFERENCE(S):           BCC2017/2645016

MEMBER:Penelope Hunter

DATE:27 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2018 at 11:20am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Business Informatics – study duration – at least 92 weeks required – six months preceding visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; 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 Immigration and Border Protection on 12 September 2017 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 25 July 2017. 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

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the Australian study requirement had been completed in the period of 6 months ending immediately before the day the visa application was made: cl. 485.231(3).

4. On 2 November 2018, the Tribunal wrote to the applicants and advised that having considered the material before it the Tribunal was unable to make a favourable decision. The applicants were invited to attend a hearing before the Tribunal via video link from Canberra on 21 November 2018.

5. On 19 November 2018, the Tribunal received submission from the applicant including a letter from Dr Anil Goel of Kambah Medical Centre, advising that the applicant was feeling too anxious to give any statement and that she needed more time to compose herself.

6. The Tribunal considered the request, and on 20 November 2018, wrote to the applicants and advised that it had decided not to postpone the hearing. It was considered that the applicants had the requisite notice of the hearing, and Dr Anil Goel did not diagnose any condition for the applicant, other than she is feeling anxious. The Tribunal accepts that most applicants who appear before it experience anxiety, and the information was not considered a satisfactory reason to postpone the hearing.  

7. The applicant and second name applicant appeared before the Tribunal on 21 November 2018, via video link from Canberra to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The applicants were represented in relation to the review by their registered migration agent, although their agent did not attend the hearing. The Tribunal discussed with the applicant’s at the commencement of the hearing the application for postponement and confirmed that the applicant was able to proceed with 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. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations, including the criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream which includes cl. 485.231. This clause 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 hold a specified qualification?

11. Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant The applicant stated in her application form that she had completed the following study;

    04/2003 – 04/2006 Bachelor of Art, GRD College, Phagwara India.

    09/2006  - 09/2007 Post Graduate Diploma, ARYA Infotech, Phagwara India.

    02/2015  - 06/2017 Master of Business Informatics, University of Canberra

12. The Master of Business Informatics (a Masters by Coursework degree) is a qualification specified in the instrument. Accordingly, cl. 485.231(1) is met.

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

13. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. An education provider is an eligible institution if it is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offers courses at the degree level or above.

14. In this case, the applicant provided to the Department with her application a letter of completion from the University of Canberra, dated 16 June 2017. It states that the applicant has successfully completed the course requirements for the award of Master of Business Informatics on 14 June 2017. The University of Canberra, CRICOS provider code 00212K, is an educational institution specified in that instrument.

15. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

16. 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.

17. 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.

18. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). 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.

19. The applicant also did not provide a copy of the decision of the delegate to the Tribunal with the review application. Pursuant to the relevant provisions of s. 359AA of the Act, the Tribunal invited the applicant to comment on information contained in the decision of the delegate that they were not satisfied that the applicant’s study satisfied the Australian study requirement in the 6 months before the application was made, as the Master of Business Informatics was registered on CRICOS as only having a duration of 69 weeks. The Tribunal further confirmed independently the information on CRICOS ( CRICOS Course Code 071685M). The applicant was advised that the information was relevant because it indicated that the course was not a total of two years academic study as required by the visa criteria. The applicant was also advised that she could seek additional time to respond.  

20. The applicant chose to respond immediately. She confirmed that she understood the reason for the delegate’s decisions. She advised that she understood that the course was not for 92 weeks according to Canberra University, she advised that maybe she had made a mistake in not understanding the requirements or her agent had not provided sufficient advice. She had extended her study to undertake the course and had studies for two years.

21. In her visa application the applicant has set out that she had undertaken her course from February 2015 to June 2017, a period of over 92 week. The Tribunal discussed this with the applicant at the hearing, again pursuant to the provisions of s.359AA the Tribunal discussed with the applicant information contained in her Provider Registration and International Student Management System records (PRISMS). The information was that the applicant’s had enrolled more than once in the Masters of Business Informatics. The enrolment commencing on 16 February 2015, had the course concluding on 30 June 2016, effectively 69 weeks. PRISMS recorded that the applicant had enrolled again extending her course completion to June 2017. The applicant was advised that the information was relevant because it documented that the course was not a total of two years academic study as required by the visa criteria. The applicant was also advised that she could seek additional time to respond.  

22. The applicant chose to respond immediately and told the Tribunal that she had needed more time to complete the course and for this reason she had extended her enrolment.

23. The Tribunal also discussed with the applicant the documents she submitted including evidence completion of an ACS Professional Year Program in Information Technology at the Queensland International Business Academy awarded July 2018 and academic transcript. However the applicant completed this study in July 2018, not in the six months preceding the visa application. In addition she has submitted confirmation of current enrolment in a Graduate Diploma of Technology (Enterprise Systems and Business Analytics) at Federation University. Again this study was not six months preceding the visa application. They therefore do not meet the requirements of cl. 485.231(3).

24. The applicant further told the Tribunal that she had made a mistake with the visa application and now just wanted some further time to complete her studies as her future was depending upon it. She had six months left of study in her Graduate Diploma of Technology. The second named applicant repeated these submissions. At the conclusion of the hearing the Tribunal asked the applicant whether she wanted any additional time to compose further responses to the Tribunal or provide submissions and she replied in the negative. The applicant further confirmed that she had understood the information that the Tribunal has discussed with her and was satisfied with her responses.

25. While the Tribunal is sympathetic to the applicant’s position this is not a matter in which the legislation provides discretion. On the evidence before it the Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.

26. Accordingly, cl.485.231(3) is not  met.

27. 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 primary criteria for the grant of a Subclass 485 visa, and the secondary criteria cannot be met either. As this is the only relevant subclass in this case, the decision under review will be affirmed.

28. Given that the applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, the Tribunal finds that the second-named applicant and the third-named applicant who have applied as a member of her family unit do not satisfy cl 485.311.

    DECISION

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

    Penelope Hunter
    Member