Nandigama (Migration)

[2024] AATA 164

Nandigama (Migration) [2024] AATA 164 (22 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Snehitha Nandigama

CASE NUMBER:  2115288

HOME AFFAIRS REFERENCE(S):          BCC2020/1162945

MEMBER:Amanda Mendes Da Costa

DATE:22 January 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 22 January 2024 at 12.58pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – specified qualification – courses completed within 6 months before visa application – applicant waited until previous Student visa expired – decision under review affirmed          

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231-485.233; rr 1.03, 1.15, 2.26

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 19 October 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 13 March 2020. 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 cl 485.231, 485.232 and 485.233.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because she did not meet the ‘Australian study requirements’.

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 18 December 2023 to give evidence and present arguments.

5. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

6. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicant that it would seek submissions from her toward the end of the Tribunal hearing on any matter she considered relevant to the review.

7. The Tribunal has considered the information in both the Departmental and Tribunal files. It has also considered the letter (undated) which the applicant provided to the Tribunal on 12 October 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   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 Master of Information Technology 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. The relevant instrument for this purpose is IMMI 14010.

13. In this case, the applicant’s qualification was conferred or awarded by Charles Sturt University which is an educational institution specified in that instrument.

14. Therefore, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

15. Clause 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.

16. 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.

17. ‘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: LIN 19/085.

18. Departmental records show that when she lodged her visa application, the applicant provided a letter of completion from Charles Sturt University regarding her Master of Information Technology degree. This letter stated that the applicant completed her course on 21 June 2019. This is more than six months ending immediately before the day the application was made.

19. The Tribunal discussed the above information with the applicant during the hearing. The applicant adopted and referred to her letter dated 12 October 2023, in which she states:

    ·Her Student visa was granted on 22 August 2017. The visa grant states that she can stay until 15 March 20202, which is two years six months and 24 days.

    ·She was unaware that she was required to apply for the Subclass 485 visa within six months of completing her course.

    ·Due to finishing her course early (after taking only one summer break) the applicant completed her course in June 2019. She then consulted with a migration agent who advised her that she had until March 2020 to apply for her Subclass 485 visa and that it was alright for her wait until two to three weeks before her Student visa expired to make the new visa application.

    ·None of the applicant’s friends (who were also visa holders) told her about the “six-month rule” and it was a genuine mistake on her part that she was unaware that she was required to lodge her visa application within six months of completing her course of studies.

    ·Her mother came to live with her in Australia in October 2019 and went back to India in February 2020 because the applicant’s father alone and worried about the Covid-19 pandemic.

    ·After her mother left Australia, she diverted by the Covid-19 pandemic and government lockdowns and did not pay much attention to her visa situation, apart from lodging her visa application in March 2020. It was not until October 2021 when she received the delegate’s decision that she realized that she was required to lodge her visa application within six months of the completion of her course.

    ·Her friends who applied for the same type of visa were all successful in those applications and were granted their visas within three to six months of their applications. She is the only one who was forced to wait more than 12 months for the delegate’s decision.

20. The applicant told the Tribunal that her difficulties had been the result of finishing her course early and receiving poor advice about her visa situation. This was compounded by her lack of understanding about the Australian study requirements.

21. The Tribunal accepts the applicant’s evidence, finding her to be a credible witness. It accepts that prior to lodging her application for the Subclass 485 visa she was not aware that she was required to complete the studies for her Master of Information Technology degree in the six months immediately before the day the visa application was made. However, the Tribunal finds that her study for the Master of Information Technology degree was not completed in the six months immediately before the day the visa application was made.

22. The Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the six months immediately before the date of the visa application.

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

24. 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

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

    Amanda Mendes Da Costa
    Member