Emmanuel (Migration)

[2023] AATA 1543

Emmanuel (Migration) [2023] AATA 1543 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Andy Emmanuel
Mrs Esther Andy
Miss Chloe Shimfuo Andy
Miss Alex Shisham Andy
Miss Hannah Andy

CASE NUMBER:  2212198

HOME AFFAIRS REFERENCE(S):          BCC2021/470571

MEMBER:Wan Shum

DATE:12 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 12 April 2023 at 2:35pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Post-Study Work stream – Australian study requirement – ‘in the 6 months immediately before the day the application was made’ – date of conferral – 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 15 August 2022 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 March 2021. 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 visas because the first named applicant (the applicant) did not satisfy cl 485.231 of Schedule 2 to the Regulations because the visa was applied for more than six months from the date the applicant was notified of fulfilling the conditions for the degree.

4. The applicants sought review of that decision.

5. The applicant appeared before the Tribunal by videoconference on 12 April 2023 to give evidence and present arguments.

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 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) 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 (cl 485.231(3)(b)). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

8. 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 LIN 23/023. In this case, the applicant holds a doctoral degree which is a qualification specified in that instrument.

9. Accordingly, cl 485.231(1) is met.

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

10. 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 LIN 23/021 which relevantly specifies that an Australia university which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students established by section 14A of the Education Services for Overseas Students Act 2000; and offers courses at the bachelor’s degree level and above.

11. In this case, the applicant’s qualification was conferred or awarded and offers courses at the bachelor’s degree level and above on 2 September 2020 by Griffith University which is registered on CRICOS and offers courses at the bachelor’s degree level and above.

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

    Does the applicant meet the Australian study requirement?

13. Subclause 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.

14. 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.

15. ‘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.

16. The applicant confirmed that he was in Australia throughout this period, so the extended 12 month period does not apply in this case.

17. The information before the Tribunal is that the applicant was conferred a doctoral degree, on 2 September 2020 by Griffith University. The applicant confirmed that this was correct. As the applicant made the visa application on 29 March 2021, the Tribunal finds that he could not have satisfied the Australian study requirement in the 6 months immediately before the day the application was made.

18. The applicant’s statement received prior to the hearing was that they had submitted an appeal to the AAT with the hope that their case would be viewed using a different lens or perspective. The submission raised two main points, the first of which was that information from the Department’s website, which states that the basic condition is that the applicant “have held a student visa in the last 6 months” ( which the applicant contended did not “clearly imply that the 6 months starts counting the moment you are notified that you have met the condition for the wards of degree whether you have a valid visa or not”. The applicant claims that he had called the Department to seek clarification and was told that he could apply for the post study visa before the current visa expires and that, at the time he was notified of meeting conditions for the award of degree, he still had 8 months left on his initial visa. The applicant added that he had also been waiting for a passport for his newborn child, but that there were delays obtaining this from Canberra because of the COVID-19 pandemic.

19. The second point raised was that it was not clear how the six months was determined and that although the degree was awarded on 2 March, he claimed that he was still actively involved in preparing the manuscript several months after. The applicants believed that the tribunal has a deeper understanding of the premise in which the rule was made and because research degrees are different from course work degree in terms of actual completion, it will be fair to shift grounds.

20. The Tribunal explained to the applicant that it did not have any power or discretion to consider extenuating conditions and had to apply the legislation strictly to the circumstances of their case. In this case, there is no dispute that the award was conferred on 2 September 2020. This is more than 6 months immediately before the date of the visa application. Given this, 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.

21. Accordingly, cl 485.231(3) is not met and 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.

22. The applicant raised a concern during the hearing regarding the information made available by the Department to persons seeking to apply for visas, suggesting that the information regarding the visa requirements could be clearer and more precise to ensure the criteria were properly met so that it was possible to apply for visas without immigration assistance.

    DECISION

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

    Wan Shum
    Member