Sood (Migration)

[2020] AATA 6205

Sood (Migration) [2020] AATA 6205 (22 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shubham Sood

CASE NUMBER:  1919690

HOME AFFAIRS REFERENCE(S):          BCC2019/2517403

MEMBER:Ian Berry

DATE:22 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 22 July 2020 at 3:01pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – occupation of Locksmith – Australian study requirement – courses completed within 6 months before visa application – excellent academic record – request for Ministerial Intervention – university scholarship offer – decision under review affirmed   

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15, 2.26

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 4 July 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 13 May 2019. 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 includes 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 the applicant did not make his application in the six-month period ending on the day before making that application. The applicant completed his Bachelor of Commerce degree on 29 October 2018, when he should have submitted his application on or after 12 November 2018.

4. The applicant appeared before the Tribunal on 26 June 2020 to give evidence and present arguments. The Tribunal only received oral evidence from the applicant. The applicant provided a copy of the delegate’s decision to the Tribunal. The hearing was conducted by telephone because of the COVID-19 pandemic.

5. 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?

6. 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 which is a qualification specified in that instrument.

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

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

8. 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 14/010.

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

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. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6) of the Regulations, 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, ‘1 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: LIN 19/090.

14. The applicant completed his Bachelor of Commerce degree at Griffith University in the period from 29 February 2018 to 29 October 2018 as shown on the university letter dated 13 June 2019. It is noted the applicant achieved recognition for:

    a.the highest grade for 2016AFE Company Law;

    b.the highest grade for 2201AFE Corporate Finance;

    c.the highest grade for 2104 Management Accounting;

    d.2016 Griffith Award for Academic Excellence for studies in Bachelor of Commerce with a Grade Point average of 6.0 or greater, placing the applicant in the top 5% of students;

    e.2017 Griffith Award for Academic Excellence for studies in Bachelor of Commerce with a Grade Point average of 6.0 or greater, placing the applicant in the top 5% of students;

    f.Golden Key International Honour Society certification that Shubham Sood is granted all honours, benefits and privileges pertaining to membership of the Society based on top 15% academic achievement, as validated by Griffith University dated 17 May 2017;

    g.Recommendation from Professor Sarah Todd Vice President (Global) offering the applicant a post-graduate course of study: ‘to reward the academic success, you have achieved so far, I would like to offer you a scholarship should you undertake postgraduate studies at the Griffith University.’

15. The applicant’s study at Griffith University fulfils the requirement that he studied at a recognised educational institution and undertook and completed a registered course of 156 academic weeks in duration.

16. The applicant completed his studies in at least 16 months duration.

17. Of the registered course undertaken and completed, the applicant’s university certified it was in the medium of English.

18. The applicant held a student visa while studying.

19. 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.

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

21. On 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.

    Ministerial Guidelines under s.351

22. The Tribunal has been asked to consider whether the applicant should be considered for Ministerial intervention. The applicant has an outstanding academic record, is in full time employment at a motorcycle retail business in Brisbane and has been involved in university life by assisting other students in a Griffith University program.

23. The Tribunal has considered the applicant’s request for the Tribunal to consider referring his matter for the exercise of ministerial intervention pursuant to s.351 of the Act. Section 351 provides a non-compatible, personal discretion of the Minister for Home Affairs to intervene in a case to grant a visa to an applicant after an unsuccessful review application, if the Minister considers that there are unique or exceptional circumstances to do so.

24. The guidelines for ministerial intervention are set out on the Department’s website: >

    The Tribunal acknowledges the applicant’s excellent academic record, his current employment and his contribution to Griffith University. The applicant was genuinely a polite and respectful young man who made the mistake of completing his visa application without the assistance of advice from a migration agent for which he is humbled by making a mistake. He may still have the opportunity of securing a temporary business visa which is a matter he will need to discuss with his employer. That is a matter he will need to explore.

25. However, the Tribunal does not consider this issue in and of itself enough to meet the Ministerial Guidelines for intervention. As discussed with the applicant, the Tribunal does not consider the applicant’s achievements, by themselves, to be sufficient for Ministerial intervention. While the Tribunal acknowledges the applicant’s involvement with university affairs, to which he has made a contribution of a positive kind, it is for the applicant to consider making a direct approach for the Minister to consider his position.

26. Griffith University above what would be expected from a university student, it does not consider that this is sufficiently compelling or unique to warrant Ministerial intervention. It declines to refer the matter but notes that it remains open to the applicant to make such a request directly to the Minister if he believes his circumstances do fall within the Ministerial Guidelines or otherwise demonstrate compelling or unique factors.

    DECISION

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

    Ian Berry
    Member