Shahi (Migration)

[2017] AATA 1889

Shahi (Migration) [2017] AATA 1889 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Namrata Shahi

CASE NUMBER:  1607250

DIBP REFERENCE(S):  BCC2015/2839063

MEMBER:Wan Shum

DATE:28 September 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 28 September 2017 at 4:05pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Study requirements met more than 6 months before visa application made

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, 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 Immigration on 3 May 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 29 September 2015. 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 had completed her study more than 6 months before she applied for the visa and did not satisfy cl.485.221 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 19 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 Graduate Work stream which include cl.485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221).

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘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).

9. In her written submissions, the applicant acknowledged that she had made the application 10 days more than 6 month period after she completed her course. She confirmed that she completed her study on 16 March 2015, and had counted the months not realising the days needed to be counted. She had asked a friend’s relative to lodge it for her, but he went overseas and did not do it. She then made the application herself without the assistance of a migration agent and she had made an honest mistake. The applicant said she had been good at her studies and wants to pursue her career here and contribute as much as she can. She asked for a second chance.

10. The Tribunal has had regard to her circumstances. However, as explained at the hearing, it does not have any discretion in this matter and cannot waive the requirement. As the applicant had completed her studies on 16 March 2015, and did not apply for the visa until 28 September 2015, she does not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.

11. Therefore, the applicant does not meet cl.485.221.

12. 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

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

    Wan Shum
    Member