Mohamed Suada (Migration)

[2024] AATA 648

Mohamed Suada (Migration) [2024] AATA 648 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shakeel As'ad Bin Mohamed Suada

REPRESENTATIVE:  Ms Trang Doan Vu

CASE NUMBER:  2120120

HOME AFFAIRS REFERENCE(S):          BCC2021/359088

MEMBER:Antonio Dronjic

DATE:27 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 27 March 2024 at 12:16pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study stream – Australian study requirement – qualification obtained within 6 months before application made – work placement completed before application made – university’s letter gives completion date 5 days after application made – student visa expired on completion date and applicant’s decision to apply before then – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)(a)

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 24 December 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 10 March 2021. 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 the criteria in Subdivision 485.23.

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 was not satisfied on the evidence presented to the Department that the applicant’s Bachelor of Nursing degree obtained from University of South Australia was completed in the 6 months ending immediately before the day the application was made (cl.485.231(3).

4. The applicant applied for a review of the delegates’ decision on 28 December 2021 and with the review application submitted a copy of the primary decision record, and documentary evidence in support of the application. The list of documents is attached to this decision record and marked as Attachment A.

5. On 8 February 2024, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing on 27 March 2024.  On 20 March 2024, the Tribunal received submissions from the applicant’s representative.

6. The applicant appeared before the Tribunal on 27 March 2024 to give evidence and present arguments. The applicant was represented in relation to the review and the representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

   Does cl 485.231 apply to the applicant?

9. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

   Does the applicant hold a specified qualification?

10. Clause 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 Nursing degree which is a qualification specified in that instrument.

11. Therefore, the applicant satisfies cl 485.231(1).

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

12. Clause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister.

13. In respect of subclause 485.231(2) the Minister has specified in an instrument in writing, IMMI13/031, that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.  The Tribunal is satisfied that University of South Australia is registered on CRICOS and offer courses at degree level and above. Therefore, the Tribunal is satisfied that subclause 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

14. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

15. 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.

16. ‘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:

17. The applicant completed Bachelor of Nursing degree course from 19 February 2018 to 15 March 2021 which is more than 16 consecutive months of study. Based on the completion latter and applicant’s statement of results the Tribunal is satisfied that the course was completed in a total of more than 16 calendar months. Therefore, the applicant meets the requirements of r.1.15F(1)(b)

18. Based on the evidence before it, and in particular data published on the CRICOS webpage evidencing that the registered duration of Bachelor of Business degree course, the applicant completed was 159 weeks, the Tribunal is satisfied that he meets requirements of r.1.15F(1)(a) and (c).

19. Based on the Statement of Completion letter from University of South Australia, Bachelor of Nursing degree course was conducted in English language. The applicant therefore satisfies 1.15F (1)(d).

20. Departmental records confirm that the applicant was the holder of a visa authorising the applicant to study during this period.  Accordingly, the applicant meets 1.15F (1)(e).

21. With his visa application, the applicant submitted a letter of completion for Bachelor of Nursing degree obtained from University of South Australia dated 19 March 2021. The letter of completion stated the applicant completed his course on 15 March 2021, some 5 days after the applicant lodged his application for a Subclass 485 visa.

22. In his evidence, the applicant stated that his student visa was expiring on 15 March 2021 and for that reason he wanted to be pro-active and lodge his visa application before that day. He further stated that he completed his work placement on 28 February 2021 but was not informed by the University that he completed all requirements for the award of degree before 19 March 2021. He conceded that he lodged his visa application 5 days before he was informed by the University that he completed all requirements for the award of his degree.

23. In her submissions, the applicant’s representative conceded that the supporting materials indicate that the applicant does not satisfy cl. 485.231. She submitted that the applicant lodged his expression of interest with the South Australian Government to apply for a Skilled visa Subclass 190 and is awaiting the invitation to apply.

24. Based on the academic records issued by University of South Australia, completion date letter of 19 March 2021 and the applicant’s oral evidence, the Tribunal finds that the applicant completed the requirements for the award of Bachelor of Nursing degree course on 15 March 2021.  

25. As the applicant lodged his application for a Subclass 485 visa on 10 March 2021, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application or in the 12 months immediately before the date of the visa application in circumstances where they were unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020. Accordingly, cl 485.231(3) is not met.

26. Based on 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

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

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Statutory declaration made by Shakeel As’ad Bin Mohamed Suada dated 28 December 2021.

    ·Statutory declaration made by Nur Elia Binti Mohamed Suada dated 27 December 2021.

    ·       Shakeel As’ad Bin Mohamed Suada University of South Australia Bachelor of Nursing Graduation statement dated 7 April 2021.

    ·Shakeel As’ad Bin Mohamed Suada Bachelor of Nursing dated 22 April 2021.

    ·Shakeel As’ad Bin Mohamed Suada University of South Australia academic transcript dated 7 April 2021.

    ·Shakeel As’ad Bin Mohamed Suada AHPRA registration dated 21 August 2021.

    ·       Employment contract between Shakeel As’ad Bin Mohamed Suada and Home Care Nurses Australia Pty Ltd dated 28 November 2021.

    ·Letter of completion from University of South Australia dated 19 March 2021.

    ·Proof of enrolment in Graduate Diploma in Nursing (Primary Health Care) dated 26 August 2021.

    ·Tenancy agreement for 18/152 Melbourne Street North Adelaide 5006 dated 16 November 2021.