GUDAVALLI (Migration)

[2018] AATA 2632

GUDAVALLI (Migration) [2018] AATA 2632 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Rajiv GUDAVALLI

CASE NUMBER:  1712121

DIBP REFERENCE(S):  BCC2017/1170965

MEMBER:Susan Trotter

DATE:8 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 08 June 2018 at 4:56pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement for ‘Australian Study Requirement’ to be completed within the 6 months preceding the date of application – Relevant qualification cancelled before completion – Other qualifications not completed within the preceding 6 months – Decision affirmed

LEGISLATION
Education Services for Overseas Students Act (Cth), s 9
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(b)
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.221

CASES
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 then Minister for Immigration and Border Protection[1] (the Minister) on 18 May 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

   [1] Now the Minister for Home Affairs

2. The applicant is a 26 year old citizen of India. He first arrived in Australia in February 2014 as the holder of a Subclass 573 (Higher Education Sector) visa. He finished study in Australia and applied for the visa the subject of this application, known as a Subclass 485 visa, on 27 March 2017.

3. Visa Class VC contains Subclass 485. 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).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because his enrolment in an Advanced Diploma of Management in Human Resources course was cancelled prior to completion, such that that course could not be relied upon to satisfy the Australian study requirement for the visa. Further, although a Master of Engineering course was completed by him, it was not completed in the period of six months immediately before the day of the visa application as required.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 June 2017 and provided the Tribunal with a copy of the delegate’s decision.

6. The Tribunal wrote to the applicant on 11 May 2018, care of his representative, pursuant to s.359(2) of the Act, inviting him to provide information addressing the requirement that he satisfied the Australian study requirement in the period of six months immediately before the day of the visa application.

7. On 24 May 2018, the Tribunal received a response to its letter of 11 May 2018 as follows:

   On behalf of the applicant, he has instructed me to advise your office that he does not wish to provide any further documentation to support his application for appeal.

8. On 28 May 2018, the Tribunal wrote to the applicant, care of his representative, seeking confirmation that the applicant consented to the Tribunal deciding the review without him appearing before the Tribunal, pursuant to s.360(2)(b) of the Act.

9. On 29 May 2018, the Tribunal received a response to its 28 May 2018 letter confirming the applicant’s instructions and consent ‘for the Tribunal to make a decision on his application for appeal’.

10. The applicant thereby consented to the Tribunal proceeding to make a decision on the review without him appearing before it: s.360(2)(b) of the Act.

11. This matter has therefore been decided on the material before the Tribunal.

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

    ISSUES

13. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which criteria include cl.485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the 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 one 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 two 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.

15. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). For the purposes of this case, ‘2 academic years’ is specified by the Minister in IMMI 09/040 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.

16. Regulation 1.15F(2) defines the term ‘completed’ in relation to a degree, diploma or trade qualification as follows:

    (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.

17. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC [2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. The term ‘completed’ was also considered in Sapkota v MIAC [2012] FCA 981 where Cowdroy J held the relevant date for determining when a student has completed the academic requirements is ‘the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution’. The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.

18. It follows that the issue to be determined by the Tribunal is whether the applicant satisfied the Australian study requirement in the period of six months immediately before the day of the visa application.

    CONSIDERATION

19. The applicant listed the following Australian study in his visa application:

    Master of Engineering  Griffith University  28/07/14 to 30/11/15

    Advanced Diploma of Management
    in Human Resources  Academique Pty Ltd               14/03/16 to 27/01/17

20. As noted by the delegate in their decision, the Provider Registration and International Student Management System records show that the Advanced Diploma of Management in Human Recourses course was cancelled and not completed. That course cannot therefore not be relied upon in seeking to satisfy the Australian study requirement.

21. The applicant provided a letter of completion and an academic transcript for the Master of Engineering course to the Department of Immigration and Border Protection[2] showing the date of completion of that course was 30 November 2015.

    [2] Now the Department of Home Affairs

22. As that course is the only course that can be relied upon to satisfy the Australian study requirement, and it was not completed with the period of six months immediately before the day of the visa application, 27 March 2017, cl.485.221 is not met.

    Conclusion

23. Given the Tribunal’s findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.

    DECISION

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

    Susan Trotter
    Member