MOHAMMED (Migration)

[2017] AATA 662

MOHAMMED (Migration) [2017] AATA 662 (27 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Moeed MOHAMMED

CASE NUMBER:  1600607

DIBP REFERENCE(S):  BCC2015/2606617

MEMBER:Denise Connolly

DATE:27 April 2017

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 2017 at 3:52pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate (Post-study work)  stream – Australian study requirements – Course not completed 6 months preceding visa application date

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, r 1.03, r 1.15F, r 2.26AC(6), cl 485.111, 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 on 14 January 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 8 September 2015. Visa Class VC contains Subclass 485. 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). The primary criteria must be satisfied by the applicant.

3. The applicant provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant provided to the Department a letter of completion from Charles Sturt University stating the applicant was considered to have completed the academic requirements for his Master of Information Technology on 27 February 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.231(3) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant’s study for the qualification satisfied the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made.

4. The applicant appeared before the Tribunal on 27 April 2017 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate (Post-study work) stream which includes cl.485.231 of Schedule 2 to the Regulations. This requires that the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing (cl.485.231(1)). It also requires that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (cl.485.231(2)); and that the applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made (cl.485.231(3)). The issue in the present case is whether the applicant meets these requirements.

   When did the applicant’s study for the qualification satisfy the Australian study requirement?

8. 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; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·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.

9. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.1.15F(2)). 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.

10. The applicant has provided evidence that he completed a Master of Information Technology at Charles Sturt University in the period 4 November 2012 to 27 February 2015. Having regard to CRICOS information the Tribunal is satisfied the course was a registered course of 104 weeks’ duration for which all instruction was conducted in English. The Tribunal is satisfied it was completed in a total of at least 16 calendar months. The applicant was holding a Subclass 573 student visa while undertaking the study. The Tribunal finds the applicant completed his Masters of Information Technology and met the Australian study requirement on 27 February 2015. Accordingly the Tribunal finds the applicant’s study for the qualification met the Australian study requirement on 27 February 2015.

11. The applicant applied for the visa on 8 September 2015, more than 6 months after he met the Australian study requirement. The Tribunal discussed with the applicant at the hearing its concern that his study for the qualification did not satisfy the Australian study requirement in the period of 6 months ending immediately before his visa application. The applicant acknowledged that he understood that he was late in making his visa application. He said this was because he was overseas attending a cousin’s wedding. However he stated that he was only one week late and he hoped that the Tribunal would take this into account. He also stated he was doing some online courses after he finished the Masters but admitted they were not courses registered in Australia. The Tribunal explained that it could not waive the requirement that he meets cl.485.231(3).

12. The Tribunal finds the applicant completed his Masters of Information Technology and met the Australian study requirement on 27 February 2015. He did not make this visa application until 8 September 2015, more than 6 months later. Accordingly the Tribunal is not satisfied the applicant’s study for the qualification satisfied the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made. He therefore does not satisfy cl.485.231(3).

13. The applicant indicated that he has applied for a Subclass 457 visa. He is waiting for the nomination application and the visa application to be approved. The Tribunal has decided not to postpone its decision in this case, to wait for those applications to be finalised, because they could take months to be finalised and they will not change the outcome of this review.

14. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Denise Connolly
    Member