Fulwani (Migration)

[2019] AATA 1103

Fulwani (Migration) [2019] AATA 1103 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Nichelle Vijay Fulwani

CASE NUMBER:  1715415

HOME AFFAIRS REFERENCE:                BCC2017/2237114

MEMBER:Lilly Mojsin

DATE:10 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 January 2019 at 10:51am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Bachelor of Business Administration – did not complete course in 16 calendar months – applicant only present in Australia 458 days – applicant not made aware of 16 month requirement by university – Tribunal does not have discretion in circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, Schedule 2, cl 485.231
Education Services for Overseas Students Act 2000, s 9

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 28 June 2017 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 24 June 2017.

3. 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

4. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations.

5. The applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent.

   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, 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.

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 IMMI 13/013; that is, qualifications undertaken at Australian Qualifications Framework (AQF) level seven or higher: Bachelor Degree; Bachelor ( Honours) Degree; Masters by Coursework Degree; Masters by Research Degree; Masters (Extended) Degree and/or; Doctoral Degree.

9. In this review, the applicant holds a Bachelor of Business Administration which is a qualification specified in that instrument.

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

11. 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 14/010. The applicant completed a Bachelor of Business Administration from SP Jain School of Global Management.

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

13. 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.

14. 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.

15. ‘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.

16. The Department found that the applicant was present in Australia for  458 days from:

    20 August 2015 to 14 December 2015 -        116 days
    06 January 2016 to 30 April 2016 -                 115 days   
    22 August 2016 to 10 November 2016            80 days 
    14 November 2016 to 22 February 2017       100 days 
    5 March 2017 to 21 April 2017   47 days

17. The applicant confirmed that she commenced the course on 20 August 2015 and finished the course on 21 April 2017. She agreed that she had left Australia, as stated by the Department. Her degree was conferred on 2 May 2017.  

18. Regulation 1.15F states:

    (1)  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:

    (a)  that are registered courses; and
                        (b)  that were completed in a total of at least 16 calendar months; and

    (c)  that were completed as a result of a total of at least 2 academic years study; and

    (d)  for which all instruction was conducted in English; and

    (e)  that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

    Note:          Academic year is defined in regulation 1.03.

    (2)  In this regulation:

    "completed " , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

    Note:          The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

19. The Tribunal has considered and accepts the submissions to the Tribunal on 6 December 2018 that the applicant was not made aware of the 16 month requirement by her university and that her university has now changed their course completion date. The Tribunal accepts that the applicant travelled out of Australia during semester breaks not realising the consequences.  Regretfully the Tribunal does not have a discretion in this instance.

20. The Tribunal finds that the applicant was only present in Australia for 458 days in the period from when she commenced the course until she finished the course. As 16 calendar months in this instance is 488 days, the applicant did not complete the course in a total of at least 16 calendar months. The applicant does not meet r.1.15F(2) and therefore cannot meet r.1.15F(1)(b).

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

22. 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

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

    Lilly Mojsin
    Member