Senaratne (Migration)

[2018] AATA 5465

Senaratne (Migration) [2018] AATA 5465 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harinda Methmal Senaratne

CASE NUMBER:  1612724

HOME AFFAIRS REFERENCE(S):           BCC2016/2337124

MEMBER:Amanda Mendes Da Costa

DATE:15 November 2018

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 November 2018 at 10:07am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa  – Subclass 485 –Post-Study Work stream – study period requirement – did not complete qualification within the period of six months ending immediately before day of application – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 9
Migration Act 1958 (Cth), ss 65, 351

Migration Regulations 1994, Schedule 2, rr 1.03, 1.15F, 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 and Border Protection on 25 July 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 12 July 2016. 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 within the period of six months ending immediately before the day on which his application was made.

4. The applicant appeared before the Tribunal on 8 October 2018 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

   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 Commerce degree which 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 13/031.

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

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

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

12. 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.

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,

    ·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.

14. ‘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.

15. The Tribunal is satisfied that the applicant’s Bachelor of Commerce was a qualification as a result of a course that was:

    ·a registered course (as defined: see r.1.03;

    ·completed (as defined: see r.1.15F(2)) in a total of at least 16 calendar months;

    ·as a result of at least 2 academic years (as specified) study; and

    ·for which all instruction was conducted in English; and

    ·while holding a visa authorising study.

16. In his oral evidence the applicant told the Tribunal that after completing his Bachelor’s degree, he intended to apply for admission to a Master’s or PhD course.  He planned to commence post graduate studies in August 2016 but was forced to place his plans ‘on hold’ when his father retired early due to ill health and he was uncertain about whether his family could further support his studies.  The Tribunal has viewed a copy of a letter from the Ministry of Health, Nutrition and Indigenous Medicine in Sri Lanka dated 15 February 2016 which confirms the circumstances of the applicant’s father’ retirement.

17. The applicant lodged his visa application on his own without any legal advice or representation.  He mistakenly thought that he could lodge the application on the basis of his Bachelor’s degree and did not understand at the time that he was required to have completed his qualification within the period of six months ending immediately before the day his application was made.

18. The applicant told the Tribunal that had performed very well in his undergraduate studies and had good prospects for obtaining a place in a post graduate course in Australia.  He submitted that if granted the visa, he would make a valuable contribution to the Australian community by sharing his knowledge and expertise in the field of accounting and finance.

19. The Tribunal has also taken into account written submissions prepared by the applicant and dated 8 November 2018 and the applicant’s Academic Transcript for his Bachelor’s degree.  It accepts that he has an excellent academic record and has good prospects for further academic study.

20. However, the Tribunal finds that given the applicant completed his Bachelor’s degree on 6 November 2015 and lodged his visa application on 12 July 2016, he did not meet the requirement of cl.485.231(3) in that he did not complete his qualification within the period of six months ending immediately before the day his application was made.

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.

24. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

25. The Tribunal notes that the applicant has an excellent academic record and failed to lodge his visa application within six months after he completed his studies, through inadvertence.  It accepts on the basis of his academic records that he has good prospects for post graduate study in Australia and the potential to make a contribution to the fields of accounting or finance in Australia.

26. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Amanda Mendes Da Costa
    Member