MACENA (Migration)

[2020] AATA 2074

MACENA (Migration) [2020] AATA 2074 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Millicent Melinia MACENA

CASE NUMBER:  1826717

HOME AFFAIRS REFERENCE(S):          BCC2018/2988283

MEMBER:Roslyn Smidt

DATE:27 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 April 2020 at 12:50pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement  – at least 2 academic years study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F; 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 Home Affairs on 12 September 2018 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 9 August 2018. 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

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because her course was not completed as a result of 2 years academic study and she therefore did not meet the Australia study requirement set out in r.1.15F.

4. The applicant appeared before the Tribunal on 20 April 2020 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 those requirements.

7. The applicant applied for the visa on 9 August 2018. She provided a letter of completion from Macquarie University which states that she was enrolled at the University from 27 February 2017 and completed the requirements for the award of a Master of International Communication qualification on 11 July 2018.  It also confirms that the course was completed in English. In support of her application review she provided evidence of her employment since completing her course.

8. At the hearing I explained that in order to obtain a 485 Temporary Graduate visa she needed to have completed a course which involved at least 2 years or a total of 92 weeks academic study. I also explained that, for the purpose of assessing eligibility for this visa, the duration of all relevant courses was set out in the Commonwealth Register of Institutions and Courses for Overseas Students and noted that the degree which she had completed was registered as having a duration of only 78 academic weeks. The applicant indicated that she had not properly understood this.

   Does the applicant hold a specified qualification?

9. 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. In this case, the applicant holds a Masters of International Communication degree which is a qualification specified in that instrument.

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

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

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 13.31.

12. In this case, the applicant’s qualification was conferred or awarded by Macquarie University which is an educational institution specified in that instrument.

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

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

14. 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.

15. 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.

16. Academic year is defined in r.1.03 to mean a period specified by the Minister as an academic year in an instrument in writing. The relevant Instrument is IMM09/040 which specifies that two academic years is 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.

17. According to CRICOS the Master of International Communication course completed by the applicant has a duration of 78 weeks.

18. 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.

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

    CONCLUSION

20. 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

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

    Roslyn Smidt
    Member