SHAMIM (Migration)

[2019] AATA 6287

SHAMIM (Migration) [2019] AATA 6287 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs RUKHSANA SHAMIM
Mr MUBASHAR SHABBIR

CASE NUMBER:  1712173

HOME AFFAIRS REFERENCE(S):          BCC2017/1816440

MEMBER:Kira Raif

DATE:25 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 25 September 2019 at 9:46am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate) visa – Post-Study Work stream – Australian study requirement not met – course was completed more than 6 months before the application was made –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.231, 485.311

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 24 May 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Pakistan. The first named applicant (‘the applicant’) was born in November 1982. She applied for the visa on 22 May 2017. The application includes her partner. The delegate refused to grant the visas because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant met the Australian study requirement in the 6 months before the application was made. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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

5. 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’s study for the specified qualification meet the Australian study requirement?

6. The applicant provided to the Tribunal a copy of the primary decision record.

7. The applicant stated in her application that she completed a Master of Professional Accounting at Federation University. She included with her application the letter of completion which shows that the course was completed on 4 November 2016. The delegate found that the course was completed more than 6 months before the application was made and did not meet the requirements of cl. 485.231.

8. In oral evidence to the Tribunal, the applicant said that although she knew about the 6 months requirement, she did not know understand the requirement and thought the 6 months commenced from the date on the CoE. The Tribunal notes that the legislation refers to the applicant satisfying the Australian study requirement – which requires the completion of the course – and not the date on the CoE. The applicant also told the Tribunal that she was pregnant and she was busy with her son and also it took time to register their marriage and obtain the passport for the child, which caused the delay. The applicant said that she is a genuine student and has completed her study in Australia and they were only late by a short period.

9. The Tribunal acknowledges the applicants’ evidence and the reasons for the late submission of the application but cannot waive the statutory criteria on the basis of the applicant’s misunderstanding of the law or for other reasons.

10. The Tribunal finds that the applicant’s study satisfied the Australian study requirement on 6 November 2016. As her application was made on 22 May 2017, this was more than 6 months before the application was made. The Tribunal finds that the applicant does not meet cl. 485.231. As the applicant does not hold a Skilled Class VC visa, the secondary applicant does not meet cl. 485.311.

    Conclusion

11. The Tribunal finds that the applicant does not meet cl.485.231. Therefore, the applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, and the secondary criteria cannot be met either. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Kira Raif
    Senior Member