Dauara (Migration)

[2019] AATA 2323

Dauara (Migration) [2019] AATA 2323 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lloyd Jeremiah Dauara
Mrs Joyce Dauara
Master Lloyd Junior Dauara
Master Jeshurun Nash Dauara

CASE NUMBER:  1808342

HOME AFFAIRS REFERENCE(S):       BCC2018/760448

MEMBER:Ian Berry

DATE:3 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 03 April 2019 at 10:09am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – IMMI 09/040 – course duration – 78 weeks – 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 Home Affairs on 16 March 2018 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 15 February 2018. 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 (Mr Daurawa) did not satisfy cl.485.231 of Schedule 2 to the Regulations because he did not complete 2 academic years of study: r.1.15F(1)(c)

4. The applicants appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal also received (via telephone) oral evidence from Dr Ian Grant.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 hold a specified qualification?

6. 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, Mr Dauara holds a Master of Arts (Ministry) which is a qualification specified in that instrument.

7. Accordingly, cl.485.231(1) is met.

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

8. Subclause 485.231(2) requires Mr Dauara’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 14/010.

9. In this case, Mr Dauara’s qualification was conferred or awarded by Harvest Bible College which is an educational institution specified in that instrument.

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

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

11. Subclause 485.231(3) requires that Mr Dauara’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. 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.

13. ‘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.

14. Mr Dauara has completed his Master of Arts (Ministry) degree at the Harvest Bible College. He says that his study was from 2016 to 2018. His calculates his study was for 96 weeks. Mr Dauara supports this contention with evidence of his student visa’s duration was for more than 78 weeks. His academic transcript  from the Harvest Bible College Inc. refers to ‘2016 academic year’ and ‘2017 academic year.’[1] Also, the confirmation of enrolment with the Harvest Bible College supports his argument of his study being much more than 78 weeks and thus supporting his contention that the academic year criteria has been met.

    [1] Departmental File, page 63

15. To his credit, Mr Dauara conceded that his studies were not for the purpose of securing a 485 visa. Once he had his degree, and having secured a position in Queensland, then considered the opportunity of applying for that visa.

16. Dr Ian Grant of the Harvest Bible College at the relevant time confirmed the thesis work was within the degree of 78 weeks.

17. The Tribunal informed Mr Dauara, that the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) confirms that the course duration is 78 weeks. The Tribunal must use that information to determine the academic years through the length of the course or courses.

18. 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.

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

20. 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.

21. The Tribunal  finds that, as cl.485.231 is not met by Mr Dauara, he cannot be granted a Temporary Graduate (Class VC) Temporary Graduate (Post Study Work stream) (Subclass 485) visa. Consequently Mrs Joyce Dauara, Master Lloyd Dauara and Master Jeshurun Dauara do not meet the criteria for the grant of a dependent Temporary Graduate Post Study Work stream visa as they do not satisfy the secondary applicants’ criteria

    DECISION

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

    Ian Berry
    Member