Randeni Arachchige (Migration)

[2019] AATA 4047

Randeni Arachchige (Migration) [2019] AATA 4047 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sithira Sajeewa Thushara Randeniya Randeni Arachchige

CASE NUMBER:  1910917

HOME AFFAIRS REFERENCE(S):           BCC2018/5127787

MEMBER:Mary Sheargold

DATE:15 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 July 2019 at 11:39am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – study requirement – application made prior to formal completion date – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.231, r 1.15F

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 April 2019 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 18 November 2018. 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 he did not satisfy the Australian study requirement for this visa.

4. The applicant appeared before the Tribunal on 12 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

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

   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 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?

7. 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 (Honours): a Bachelor level degree is a qualification specified in that instrument.

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

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

9. 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 13/013.  The applicant’s qualification was conferred by Curtin University, Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider code 00301J.

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

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

11. Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

12. 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,

    ·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.

13. 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.

    Did the applicant complete a degree, diploma or other trade qualification in the 6 months immediately before the application was made?

14. The applicant applied for the visa on 18 November 2017.  The applicant provided the Tribunal with a copy of his academic transcript for his Bachelor of Engineering (Civil and Construction Engineering) (Honours) dated 21 January 2019.  The transcript indicates that the applicant completed the Bachelor of Engineering (Civil and Construction Engineering) (Honours) on 6 December 2018.  The applicant does not dispute this completion date.

15. Prior to the hearing, the applicant’s representative made submissions that the applicant had completed his application himself, and that he had felt compelled to lodge his Subclass 485 visa application prior to the formal completion date for his course because he needed to be granted a Bridging Visa B to return to Sri Lanka for his sister’s wedding.  The wedding took place on 5 December 2018 and 26 December 2018. 

16. At the hearing, the applicant stated he was sure he would have passed his final exams, and knowing he needed to return to Sri Lanka for his sister’s wedding, he had decided to complete his Subclass 485 visa prior to departing.  He stated that he was aware that his student visa would expire on 23 December 2018, while he was still in Sri Lanka for his sister’s wedding celebrations, and as such needed to ensure he lodged the application before he left.  The Tribunal queried whether the applicant may have sought an extension of his student visa rather than lodging the Subclass 485 visa prior to formally completing his course.  The applicant stated that he had already extended his visa to complete his final subjects, and that the new expiry was 23 December 2018.

17. At the hearing, the applicant acknowledged that because his Bachelor of Engineering had not been completed in the 6 months immediately before the day the application was made, he could not rely on it to satisfy the Australian study requirement.  The Tribunal enquired as to whether the applicant had completed any other courses of study that may satisfy the Australian study requirement in the 6 months immediately before the day he made the Subclass 485 visa application.  He stated that he had not.

18. The applicant’s representative made additional submissions at the hearing, especially with respect to the unfair situation the applicant found himself in whilst trying to comply with the requirements of the law in lodging his Subclass 485 visa application alongside his need to attend his sister’s wedding in Sri Lanka.

19. The representative submitted that it was unusual for the applicant’s student visa to expire in December and noted that student visas generally expire in mid-March in the year following the expected completion of their course of study, and she further submitted that Sri Lankan students were especially disadvantaged by the Subclass 485 application process as they cannot return to Australia on a visitor visa easily in order to lodge a Subclass 485 visa application onshore if they had chosen to return home after completing their final exams.

20. The Tribunal acknowledges that the applicant found himself in a difficult position in needing to travel to Sri Lanka for his sister’s wedding whilst he awaited the outcome of his final university assessments.  However, as explained to the applicant at the hearing, the Tribunal has no discretion to take the applicant’s personal circumstances into account in assessing whether or not he has satisfied the Australian study requirement.  The applicant acknowledged he understood this.

21. The Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.

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

23. On the basis of 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

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

    Mary Sheargold
    Member