Karanja (Migration)

[2023] AATA 4273

Karanja (Migration) [2023] AATA 4273 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rahab Nyambura Karanja

CASE NUMBER:  2112886

HOME AFFAIRS REFERENCE(S):          BCC2020/429696

MEMBER:Mary Sheargold

DATE:12 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 12 December 2023 at 2:44pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – two academic years of relevant study – courses completed within 6 months of visa application – applicant delayed in home country arranging new passports – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231-485.233; rr 1.03, 1.15, 2.26

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 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 February 2020. 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, 485.232 and 485.233.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because she did not make her application within 6 months of completing her most recent Australian qualification.

4. The applicant appeared before the Tribunal by telephone link from South Australia on 23 August 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 the Australian study requirement as set out in cl 485.231(3).

   Does the applicant meet the Australian study requirement?

7. Clause 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.

8. 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.

9. ‘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 19/051.

10. The applicant acknowledged upfront that she made this visa application herself more than 6 months after the completion of her Master of International Tourism and Event Management degree.  She told the Tribunal she did so because she received some advice, not paid for, that she would need to gather certain documents including a police clearance from her home country before being able to lodge her application.  Believing she had sufficient time as her student visa had plenty of validity despite having completed her course, the applicant elected to travel to Kenya to get her police clearance.  She told the Tribunal she was delayed in Kenya as new passports were being issued and she needed to wait for one to be made up for her.

11. The Tribunal discussed with the applicant the unfortunate circumstances she had found herself in and established that she has continued to work diligently in Australia while waiting for the Tribunal to consider this application, and that she has plans to seek an invitation from the South Australian government to apply for a different type of visa to assist her to live and work lawfully in Australia.

12. Because her application was made in February 2020 and the course studied was completed in June 2019, the Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

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

    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

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

    Mary Sheargold
    Member