Manmeet Singh (Migration)

[2018] AATA 5592

Manmeet Singh (Migration) [2018] AATA 5592 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manmeet Singh

CASE NUMBER:  1619168

HOME AFFAIRS REFERENCE(S):           BCC2016/2632284

MEMBER:Warren Stooke AM

DATE:26 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 October 2018 at 11:49am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – no post-graduate degree – two year Australian study requirements in the six months before the date of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, 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 31 October 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 9 August 2016. 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 at the time of application the applicant had not qualified for a Post graduate degree.

4. The applicant appeared before the Tribunal on 18 October 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

7. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 31 October 2016, a copy of which was provided to the Tribunal by the applicant, which he stated he understood.

8. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant had met the criteria for the grant of a 485 visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. The applicant’s representative submitted that the applicant had already successfully completed all the requirements and it was contended that this belief stemmed from one document the applicant had generated on 9 June 2016 to get the full results of his degree. The document showed the result dates of all four final subjects of the last semester as at 24 June 2016 or before. Out of these four subjects that had been completed in the last semester, 3 of them had results marked as "C" with the date of the results in the next column. However, only one subject named "Enterprise Information Systems" mentioned the result being "W', which the Tribunal was advised meant being "Withheld".

12. It was also submitted that the lecturer asked a few students of the class to resubmit after amending a portion of one of the assignments, which the applicant did straightaway. The lecturer further advised him verbally some time before 9 August 2016 that his results had been finalized and already forwarded to administration for compiling. The applicant gave evidence that the scenario outlined in the representative’s submission led the applicant to believe that once "Withheld" was removed from the result, the applicant’s result date for that particular subject would still remain the same as 21 June 2016. It was argued, that had that been the case, the applicant’s completion date for his Master Degree would have been as 24 June 2016.

13. The applicant gave evidence that he had already booked his flight ticket to travel to India on 11 August 2016 on the premise that he had completed his degree and met the requirements of the criteria for the grant of a 485 visa.

14. The applicant gave evidence that the answer "NO" to the question "Do you meet the two-year study in Australia requirement in the six months before the date of application" was in no way an intentional act of dishonesty, which the Tribunal accepts as a genuine belief held by the applicant and that it was available to the applicant to defer submission of the visa application until 31 August 2016, if he thought his date was anything other than 21 June 2016. The significance of the 31 August 2016 is the date the applicant’s student visa was due to expire.

15. The Tribunal asked the applicant if he had obtained a copy of the academic transcript before making his visa application on 9 August 2016 and he responded that he did not acquire a copy of the transcript at that time.

16. The applicant also confirmed to the Tribunal that he had contacted his Professor concerning the matter, but he did not respond and he had not approached the administrative body to examine the matter.

    Does the applicant hold a specified qualification?

17. 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 and it sets out the relevant criteria to be satisfied for the grant of Post Graduate 485 visa. In this case, the applicant did not hold a Master Degree at the time of application and it was confirmed in evidence that the last subject required for the qualification was obtained on 19 August 2016, which was ten days after filing the application.

18. Accordingly, cl.485.231(1) is not met.

19. 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.

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

21. 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

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

    Warren Stooke AM
    Member