Mohamed Salil (Migration)

[2018] AATA 5485

Mohamed Salil (Migration) [2018] AATA 5485 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zabin Mohamed Salil

CASE NUMBER:  1724770

HOME AFFAIRS REFERENCE(S):           BCC2017/2684850

MEMBER:Jennifer Cripps Watts

DATE:13 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 13 November 2018 at 11:54am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 –  Post-Study Work stream – course completed after application – time requirements – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, rr 1.03,1.15F, 2.26AC(6), 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 26 September 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 28 July 2017. 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 the delegate found that the applicant completed his course after the visa application was made, not within the required six months immediately prior to the application.

4. The applicant appeared before the Tribunal on 13 November 2018 to give evidence and present arguments.  

5. The applicant was represented in relation to the review by his registered migration agent, Yunus Yip, Migration Agent Registration Number 0961979.

6. The applicant lodged his review application on 11 October 2017, within time.  On 8 October 2018, the Tribunal received correspondence from the applicant’s representative requesting that his residential address be updated and the applicant’s record was updated by the Tribunal accordingly.  The matter was constituted to this member on 25 October 2018 and, on the same day, an invitation to attend a hearing scheduled on 13 November 2018 was sent to the applicant.    

7. In the invitation, the applicant was informed that a response to the hearing invitation should be provided within seven days and that any additional documents or information that he wished to rely on at the hearing be provided by 6 November 2018.  The applicant provided no additional information by that date or at any time prior to the scheduled hearing.  SMS hearing reminders were sent to the applicant’s mobile number, provided by him, on 6 and 12 November 2018.

8. After the second SMS reminder was sent, on the afternoon before the hearing, the applicant’s representative informed the Tribunal that she and the applicant would attend the hearing.  They brought documents to the hearing that had not been provided previously.  After considering the documents, the representative and applicant were informed that if they had provided the documents before the hearing, as requested, there would have been no need for a hearing because the Tribunal would have been able to make a positive decision on the papers remitting the matter for reconsideration on the basis that the applicant now meets cl.485.231.  No reasonable explanation was given by the applicant’s representative, in the Tribunal’s view, about why the documents were not provided in a timely manner before the hearing as they were available, at the latest, on Friday 9 November 2018.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 six 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 hold a specified qualification?

10. 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 Bachelor of Engineering (Mechanical Engineering) which is a qualification specified in that instrument, that is, a Bachelor Degree:  1.(a).

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

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

12. 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 13/031.

13. In this case, the applicant’s qualification was conferred or awarded by the University of Sydney, New South Wales, which is a university registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), and is therefore an educational institution specified in the relevant instrument.

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

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

15. The applicant must also meet cl.485.231(3).

16. Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the six months immediately before the day the visa application was made.

17. 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 one 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 two 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.

18. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). 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.

19. The applicant has provided documents that indicate, and the Tribunal is satisfied that:

    a.He studied a registered course;

    b.The course was completed in a total of at least 16 calendar months and as a result of at least 2 academic years’ study;

    c.The registered course, the Bachelor of Engineering (Mechanical Engineering) at the University of Sydney was conducted in English; and

    d.The applicant undertook the study while he held an Australian student visa.  He was granted a subclass TU-573 visa on 26 July 2012 that was valid until 13 July 2016 and a second student visa, subclass TU-500, from 13 July 2016 and valid to 30 July 2017.

20. These matters are not in dispute.

21. What was in dispute at the time of application was whether the applicant completed the relevant degree in the six months immediately before the 485 visa application was made (on 28 July 2017):  r.2.26AC(6).  The applicant provided evidence to the delegate that indicated clearly that he completed the course after he lodged his 485 visa application.

22. However, the applicant has now provided documents at the hearing that indicate to the Tribunal, and the Tribunal is satisfied, that he completed all academic requirements for award of the Bachelor Engineering (Mechanical Engineering) at the University of Sydney on 19 July 2017.  He provided the following:

    a.A letter from Dr Andrei Lozzi, Senior Lecturer Mech Design and CAD, that states, in summary, that the applicant had completed all course requirements for the Bachelor of Engineering (Mechanical Engineering) by 8 June 2017 and that the applicant was notified of that fact on 19 July 2017.  The letter is not dated, but the applicant said at the hearing he requested it in the week prior to the Tribunal hearing and received the letter on 9 November 2018 and the Tribunal accepts his evidence in this regard;

    b.The applicant’s official University of Sydney transcript.

23. The applicant provided, with his visa application that is the subject of this review, a letter from the University of Sydney, dated 18 September 2017.  The letter states:

    ‘This is to confirm that … (the applicant) … has completed the requirements and been awarded the degree of Bachelor of Engineering (Mechanical Engineering) at the University of Sydney as of 8 August 2017.’

24. The applicant lodged his 485 visa application on 28 July 2017 and did not provide documentary evidence at the time of application that indicated he had completed the qualification on which he relies to support his subclass 485 visa application within the six months immediately prior to lodging the application.  The delegate, justifiably, refused the visa because the applicant did not meet cl.485.231(3). The 18 September 2017 University of Sydney letter he provided with his application did not include a date upon which the applicant completed his academic requirements and it was entirely reasonable for the delegate to find that the relevant date was 8 August 2017, as stated in the letter.

25. The applicant has now provided additional documentary evidence not provided at the time of application, and also gave reliable corroborative oral evidence, that satisfies the Tribunal that he had completed the relevant course, within the meaning given to ‘completed’ in r.1.15F, no later than 19 July 2017.

26. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the six months immediately preceding the date of the visa application.

27. Accordingly, cl.485.231(3) is met.

28. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

29. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member