Sunderam Arulappu George (Migration)

[2023] AATA 4264

Sunderam Arulappu George (Migration) [2023] AATA 4264 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilan Sunderam Arulappu George

REPRESENTATIVE:  Mr Joshi Thalluri (MARN: 0210891)

CASE NUMBER:  2112811

HOME AFFAIRS REFERENCE(S):          BCC2020/196220

MEMBER:Mary Sheargold

DATE:11 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2023 at 3:35pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – completing a specified course of study – only English language course completed – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.231 – 485.233

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 7 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 January 2020. 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 (Cth) (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, 485.232 and 485.233.

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 provide evidence that he had completed a course of study registered on CRICOS.

4. The applicant appeared before the Tribunal by MS Teams video link on 23 August 2023 to give evidence and present arguments.

5. The applicant was represented in relation to the review.  However, the representative did not attend the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. Clause 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.  Item 4 of IMMI 13/013 specifies qualifications achieved as a result of study undertaken at the Australian Qualification Framework level 7 or higher, being a bachelor degree with or without honours, a masters degree or doctoral degree.

9. In this case, the applicant undertook an English language course prior to making this visa application.  At the hearing, he explained to the Tribunal that on arriving in Australia he realised he needed to increase his English language skills, and that on completion of that course, a friend advised him that he would be eligible for a Subclass 485 visa because he had completed a course of study within Australia. 

10. The applicant freely acknowledged that the English language course he took is not a qualification of the type specified in IMMI 13/013. He acknowledged that he understood this meant he did not mean one of the criteria for the grant of a Subclass 485 visa and that he understood this left the Tribunal with no option than to affirm the decision under review.

11. Therefore, on the evidence available at the time of its decision, the Tribunal finds that the applicant does not satisfy cl 485.231(1).

    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.

    DECISION

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

    Mary Sheargold
    Member