Chhabra (Migration)

[2024] AATA 574

Chhabra (Migration) [2024] AATA 574 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rattandeep Singh Chhabra

REPRESENTATIVE:  Mr Aneel Khowaja (MARN: 1571699)

CASE NUMBER:  2114759

HOME AFFAIRS REFERENCE(S):          BCC2020/2906948

MEMBER:Mary Sheargold

DATE:15 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2024 at 7:57am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Engineering (Telecommunications) – course completion date – after visa application date – decision under review affirmed

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

CASES
Ali v MICMSMA [2021] FCA 1311
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC [2008] FMCA 409

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 6 October 2021 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 December 2020. 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, 485.232 and 485.233.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231(3) of Schedule 2 to the Regulations because he did not meet the Australian study requirement in the period of 6 months immediately before the day he made his application.

4. The applicant appeared before the Tribunal by MS Teams video link on 29 February 2024 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 485.231(3) requires the applicant to 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 that requirement.

   Does the applicant meet the Australian study requirement?

8. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

9. 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.

10. ‘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)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: LIN 19/085.

11. Mr Chhabra studied for his Master of Engineering (Telecommunications) degree at the Melbourne Institute of Technology from 15 July 2019 until he completed his assessments on 9 November 2020.  He made his visa application on 31 December 2020.  After he made his application, Mr Chhabra provided the Department with a completion letter from Melbourne Institute of Technology dated 20 January 2021 that stated he had completed his course on 18 January 2021.

12. The delegate refused the application on the basis that Mr Chhabra’s completion date as advised by Melbourne Institute of Technology was not within 6 months of the date immediately before the day he made his application.

13. At the hearing, Mr Chhabra’s representative submitted that his client understood he had not been able to obtain any further evidence from Melbourne Institute of Technology to counter its original advice that his course completion date was 18 January 2021, but stated that Mr Chhabra sought the Tribunal’s indulgence for one final opportunity to obtain information from that institution to assist the Tribunal to make a finding of fact that he had completed his course in the 6 months immediately prior to the day he made his application.  The Tribunal agreed to this request and granted Mr Chhabra until 7 March 2024 to provide any additional evidence to support a finding that he could meet the Australian study requirement relying on his Master of Engineering (Telecommunications) degree.  As at the date of this decision, no additional evidence has been provided.

14. The Tribunal has carefully considered the Court’s reasoning in Ali v MICMSMA [2021] FCA 1311 where the Court relied on existing authority in Venkatesan v MIAC [2008] FMCA 409 and Sapkota v MIAC [2012] FCA 981 and at [39] held that the date of completion is not what the university considers it should be, yet rather what Parliament says it is. Accordingly, at [48] the Court in Ali v MICMSMA [2021] FCA 1311 accepted that the language of reg 1.15F(2) referring to the ‘academic requirements’ of a degree, is comfortably met by study assessed as satisfactory and grounding the award of a degree.

15. At the hearing, Mr Chhabra indicated that he believed he had completed all the requirements for his degree prior to making his application, and that he made his application in haste as his student visa was expiring on the same day he applied, 31 December 2020.  He told the Tribunal that he had asked Melbourne Institute of Technology on more than one occasion for written verification that he had met the academic requirements for his degree before 31 December 2020, but that it had declined to provide him with that verification.

16. In this case, Mr Chhabra has not been able to provide any documentary evidence to assist the Tribunal in making a finding that he had all of his study assessed as satisfactory and grounding the award of his Master of Engineering (Telecommunications) degree within 6 months immediately before 31 December 2020.  As such, the Tribunal is satisfied that the course completion letter provided by Melbourne Institute of Technology dated 20 January 2021 accurately reflects the date on which Mr Chhabra met the academic requirements for the award of his degree. 

17. Therefore, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

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

    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

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

    Mary Sheargold
    Member