Luis Miguel (Migration)

[2018] AATA 5758

Luis Miguel (Migration) [2018] AATA 5758 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAENZ ESPITIA Luis Miguel

CASE NUMBER:  1611586

HOME AFFAIRS REFERENCE(S):           BCC2016/1072644

MEMBER:Kira Raif

DATE:23 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2018 at 7:44am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completion date – letters of completion issued by University – same day as visa application was made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 25 July 2016 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 11 March 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate found that the applicant’s study for the qualification did not meet the Australian study requirement in the 6 months before the application was made. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 November 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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.

5. 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.

   Does the applicant’s study for the specified qualification meet the Australian study requirement?

6. The applicant stated in his application that he completed a Bachelor of Information Technology at La Trobe University between March 2014 and February 2016. The Tribunal finds that the applicant relied on that qualification to satisfy the Australian study requirement.

7. The applicant stated on the application form that the course was completed on 18 February 2016. However, he provided with the application, and to the Tribunal, a letter of completion issued by La Trobe University on 15 April 2015, which states that the applicant qualified for admission to the degree on 6 April 2016 and the delegate found that the applicant’s study satisfied the Australian study requirement after he made the application for the visa.

8. The applicant provided further evidence to the Tribunal. This includes a letter of completion dated 5 May 2017 confirming the applicant successfully completed a Bachelor of IT after three years of full-time study. It states that the applicant commenced the course in March 2014 and qualified for admission on 11 March 2016. In his statement to the Tribunal the applicant states that in March 2016 he received his grades report advising that he completed the study requirements.  The University subsequently confirmed in their correspondence to the Tribunal that the applicant qualified for admission on 11 March 2016, consistently with the information provided to the Tribunal by the applicant.

9. In the course of the hearing the Tribunal discussed with the applicant the meaning of the term ‘completed’ and invited the applicant to contact the University to confirm when all the administrative requirements for the course were met. Following the hearing, the applicant wrote to the Tribunal stating that the university did not keep records of when administrative tasks had been completed and provided a letter of completion which refers to the completion date as 11 March 2016. The applicant indicated that this was the date he obtained examination results and that he was unable to obtain further evidence.

10. In the Tribunal’s view, it is at least possible that if the applicant was notified of the examination results on 11 March, then the university would have completed its administrative processes prior to that date. However, there is no probative evidence to enable the Tribunal to make a positive finding that this was the case. The letters of completion issued by the University refer to the applicant meeting course requirements on 11 March 2016 and, in the absence of other evidence, the Tribunal must accept that as the date of completion.

11. The Tribunal finds that the applicant completed his qualification on 11 March 2016. He made the application for the visa on the same date. The Tribunal is not satisfied that the applicant satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The Tribunal is not satisfied the applicant meets cl. 485.231.

    Conclusion

12. 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

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

    Kira Raif
    Senior Member