Sachdeva (Migration)

[2021] AATA 1118

Sachdeva (Migration) [2021] AATA 1118 (20 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sukriti Sachdeva

CASE NUMBER:  1828696

HOME AFFAIRS REFERENCE(S):          BCC2018/2915196

MEMBER:Antonio Dronjic

DATE:20 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 April 2021 at 3:58pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – registered duration of courses – course undertaken in longer time than registered duration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1)(c), Schedule 2, cl 485.221

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 12 September 2018 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 3 August 2018. 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).

3. The delegate refused to grant the visa because the applicant did not satisfy r.1.15F(1)(c) for the purposes of meeting the requirements of cl.485.221 of Schedule 2 to the Regulations. The delegate found that the applicant did not complete two academic years of Australian study.

4. The applicant sought review of the delegate’s decision on 1 October 2018 and with her application submitted the following relevant documents:

   ·A copy of the primary decision record;

   ·A copy letter from Legal Profession Admission Board dated 15 August 2018;

   ·A copy completion letter issued by Leo Cussen Centre for Law dated 13 July 2018 as evidence that the applicant completed Graduate Diploma in Legal Practice from 29 January 2018 to 6 July 2018 and that the registered duration of this course was 24 weeks; and

   ·A copy completion letter issued by the University of Melbourne dated 2 August 2018 as evidence that the applicant completed the degree of Master of Law between 1 February 2015 and 20 April 2017.

5. On 20 April 2021, the applicant submitted a copy correspondence exchanged between her and Ms Marychurch, the Assistant Dean at Melbourne University, in January 2019.

6. The applicant appeared before the Tribunal on 20 April 2021 to give evidence and present arguments.

7. The applicant is 28 years of age and a citizen of India. She first came to Australia as the holder of a Student visa in February 2015. The applicant lodged her Subclass 485 Graduate Work stream visa on 3 August 2018 and nominated Solicitor (ANZSCO 271311) as her occupation.

8. In her evidence she confirmed that she completed the following courses in Australia:

   ·Graduate Diploma in Legal Practice completed at Leo Cussen Institute between from 29 January 2018 and 6 July 2018; and

   ·Master of Laws completed at University of Melbourne between 1 February 2015 and 20 April 2017.

9. In her evidence she conceded that, according to Commonwealth Register of Institutions and Course for Overseas Students (CRICOS), the registered duration of Graduate Diploma in Legal Practice was 24 weeks and the Master of Laws 52 weeks. She stated her belief that the registered duration of Master of Laws course should have been longer than 52 weeks.

10. The applicant gave evidence that in March 2020, she lodged an offshore application for a spouse visa. This application is currently pending at the Department. She is currently employed by the Victorian Government.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and cl.485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl.485.221) and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

    Does the applicant meet the Australian study requirement?

13. 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.

14. ‘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, 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.

15. The ‘Australian study requirement’ does not require visa applicants to have completed a single course of study of two academic years’ duration. Accordingly, it is necessary to consider whether the applicant can rely on all of the courses he completed in Australia to meet the ‘Australian study requirement’.

16. The applicant is seeking to rely on completion of the following courses:

    ·Graduate Diploma in Legal Practice completed at Leo Cussen Institute between from 29 January 2018 and 6 July 2018; and

    ·Master of Laws completed at University of Melbourne between 1 February 2015 and 20 April 2017.

17. CRICOS website confirms that the registered duration of the Graduate Diploma in Legal Practice course was 24 weeks and the Master of Laws for 52 weeks. Accordingly, the Tribunal finds that the registered courses undertaken by the applicant in Australia have a total registered duration of 76 weeks. Consequently, it finds that the applicant has not completed a total of at least 2 academic years study, or a total of 92 weeks study, in Australia as required by r. 1.15F(1)(c).

18. Therefore, the Tribunal finds that, as the applicant does not meet the requirements of r.1.15F(1)(c), she does not satisfy the Australian study requirement set out in regulation 1.15F. 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. Therefore, the applicant does not meet cl.485.221.

19. 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

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

    Antonio Dronjic
    Member