Mohammed (Migration)

[2017] AATA 552

Mohammed (Migration) [2017] AATA 552 (19 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Kareem Mohammed Mohammed

CASE NUMBER:  1618083

DIBP REFERENCE(S):  BCC2016/2788935

MEMBER:Wan Shum

DATE:19 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 19 April 2017 at 9:32am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post-Study Work stream – Australian study requirement – Completed 6 months immediately preceding visa application date – Master of Science degree – Less than 2 academic years study – English Language Program course – Non AQF award course

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231, r 1.15F(1), r 2.26AC(6), IMMI 09/040

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 17 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 23 August 2016. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa finding that the applicant did not satisfy the Australian study requirement and thus did not satisfy cl.485.231 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 13 April 2017 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. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which includes cl.485.231 of Schedule 2 to the Regulations. This criterion requires that the applicant must hold a qualification or qualifications of a kind specified by the Minister and each qualification satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

7. It was indicated on the visa application form that the applicant had completed the following Australian qualifications:

   Qualification              Masters (by coursework) degree

   Course name             Msc Dementia Care

   Institution name          University of Wollongong

   Date from                 7 July 2014

   Date to                    20 July 2016

8. A Masters by Coursework Degree is a qualification specified by the Minister in the relevant instrument (IMMI13/013).

   Does the applicant meet the Australian study requirement?

9. 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.

10. ‘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 (IMMI 09/040). Education institutions can only enrol and deliver education services to students in Australia on a student visa if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

11. The applicant provided a copy of his Confirmation of Enrolment for the Master of Science (Dementia Care) [084856A] course which indicates that the course start date was 2 March 2015 and the course end date was 15 July 2016.

12. The applicant provided a letter from the University of Wollongong stating that the degree “usually takes one and half (1.5) to two (2) years of full time study to complete”. It further states that he was enrolled in the Master of Science (Dementia Care) on a Full-time basis during Autumn and Spring session 2015 and Autumn session 2016. It confirmed that the applicant commenced the degree in Autumn session 2015.

13. As set out in the delegate’s decision record, a copy of which was provided by the applicant, the Master of Science degree [084856A] completed by the applicant is registered on CRICOS for a total of 78 weeks. This is less than ‘2 academic years’ study as specified by the Minister.

14. Therefore, the Master degree qualification was not as a result of a course that was at least 2 academic years (as specified) study. The applicant also provided details of an English Language Program course at the University of Wollongong College that he undertook from July 2014 to February 2015. He said at the hearing that he had studied at the University from July 2014 until July 2016 which is two years of study.

15. However, according to the CoE for the English language course provided by the applicant, it is a non AQF award course. The Tribunal finds that it is not a degree, diploma or other trade qualification as defined in r.2.26AC(6). Therefore, it cannot be counted towards the 2 academic years study for the purposes of the Australian study requirement.

16. In a statement, the applicant indicated that he had submitted three applications for Doctor of Philosophy studies at Australian universities and referred to a letter of offer from UTS during the hearing. He has provided a letter from Associate Professor Gideon Caplan confirming that he agreed to supervise his PhD at UNSW. While it appears that the applicant may have further opportunities to study in Australia, he did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application the subject of this review. The applicant referred to having obtained assistance from an agent who had told him that he met the requirements for the Subclass 485 visa. The Tribunal is unable to waive the Australian study requirement or take into account any extenuating circumstances, such as wrong advice. It has no discretion in this matter.

17. As the applicant did not satisfy the Australian study requirement prior to the visa application being made, he does not meet cl.485.321.

18. 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

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

    Wan Shum
    Member