Jones (Migration)

[2018] AATA 5836

Jones (Migration) [2018] AATA 5836 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jaclyne Ann Jones

CASE NUMBER:  1732215

HOME AFFAIRS REFERENCE(S):           BCC2017/4145612

MEMBER:Ian Berry

DATE:13 December 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 13 December 2018 at 11:28am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirements – 16 months of study not completed – two academic years of study not completed – Diploma of Sport Development – course transfer – Graduate Diploma of Education – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, 2.26, Schedule 2, cls 485.111, 485.221
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 6 December 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 7 November 2017. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221of Schedule 2 to the Regulations because the applicant had not satisfy the delegate as to the Australian study requirement in that she did not complete 16 months in study and had not completed two academic years of study.

4. The applicant did not attend the hearing and did not give notice to the tribunal of her intention not to attend the hearing. The result was to hold over the commencement of the hearing for a reasonable period of time so as to ensure that any message from the applicant as to problems in attending the hearing could be received. The Tribunal did not receive any message or any other communication and therefore decided to proceed to determine the matter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221). The issue in the present case is whether the applicant meets that requirement.

   Does the applicant meet the Australian study requirement?

7. 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; and

   ·that were completed in a total of at least 16 calendar months; and

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

   ·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.

8. ‘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). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). 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).

9. The applicant did not provide any certificates relating to her study in Australia and the delegate relied on information obtained in PRISMS (Provider Registration and International Student Management System). Similarly the Tribunal researched the courses undertaken by the applicant through that same source.

10. Departmental and the tribunal’s research revealed the applicant commencing a Diploma of Sport Development with a registered course provider. This course had a start date of 12 December 2016 and a completion date of 17 September 2017. The applicant did not complete that course corroborated by her contacting that registered provider. She may have undertaken three months of study. The result continues to be that she has not completed at least 16 months of study.

11. The applicant notified her registered course provider where she was enrolled for the Diploma of Sport Development, she had to left, to transfer to another course. On 27 February 2017 the applicant enrolled with the a Gold Coast University in a Graduate Diploma of Education (Graduate Diploma) course which commenced on 27 February 2017 with the completion date of 31 October 2017. That course was completed on 31 October 2017.

12. On 7 November 2017, the applicant was granted a bridging Visa A and at the same time made application for the VC 485 visa.

13. The Tribunal determined, the course completed by the applicant was for 52 weeks only. The applicant had completed the diploma course for a period of approximately three months. As previously addressed, the course was not completed, and the applicant fell short of the required 16 months.

14. The Tribunal is satisfied and finds the applicant has not undertaken study for at least 16 months and has not completed 2 academic years of study. Therefore, she has not complied with the criteria in cl. 485.221 of Part 485 of Schedule 2 to the Regulations.

    DECISION

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

    Ian Berry
    Member