Syed Mokhsain (Migration)

[2020] AATA 5744

Syed Mokhsain (Migration) [2020] AATA 5744 (29 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Muhammad Dayan Bin Syed Mokhsain

CASE NUMBER:  1825093

HOME AFFAIRS REFERENCE(S):          BCC2018/2513058

MEMBER:K. Chapman

DATE:29 November 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 29 November 2020 at 3:18pm   

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Business Management/Bachelor of Information Technology – ‘immediately before the day the visa application was made’ – official academic completion date on the same day as the visa application was made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC; Schedule 2, cl 485.231

CASES
Sapkota v MIAC [2012] FCA 981

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 27 August 2018 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 4 July 2018. 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 they were not satisfied that the applicant completed his study of the Bachelor of Business Management/Bachelor of Information Technology within the 6 months immediately prior to the visa application, therefore not meeting the requirements of cl.485.231 of Schedule 2 to the Regulations.

4. On 28 August 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. In addition, the applicant submitted a letter from the University of Queensland dated 28 August 2018, confirming that he completed the academic course requirements for his combined Degree study on 4 July 2018. Further, the applicant submitted additional documentation, such as Academic Transcripts, confirming the awards were conferred on 19 July 2018. The Tribunal is satisfied with the authenticity of the aforementioned material, which is consistent with the applicant’s claims in his visa application. 

5. The applicant appeared by telephone before the Tribunal on 27 November 2020 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone. The applicant is a national of Malaysia. He is currently residing in his country of nationality.

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 (emphasis added). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

8. 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 the Bachelor of Business Management/Bachelor of Information Technology which are qualifications specified in that instrument.

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

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

10. 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.

11. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland (CRICOS Provider code 00025B) which is an educational institution specified in that instrument.  

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

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

13. 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.

14. 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 one 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.

15. ‘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, one ‘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: instrument LIN19/085.

16. The applicant provided material to the Tribunal confirming that the academic requirements for his combined awards were ‘officially completed’ on 4 July 2018. He confirmed this to be correct information in his oral evidence at the review hearing. It is worth pausing to reflect that the applicant also applied for the Subclass 485 visa on 4 July 2018.

17. During the review hearing, the Tribunal raised with the applicant that the evidence tends to suggest he satisfied the academic requirements for his awards on the same day that he applied for the Subclass 485 visa, therefore indicating he did not meet the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made, inviting his comment. The applicant responded that, “…I seem to be caught in being too early by a day.” The Tribunal again outlined that the official academic completion date tended to suggest that he did not satisfy the requirements for the visa. The Tribunal again invited the comment of the applicant, however, he had no further information to provide regarding this matter.

18. The Tribunal has carefully considered all of the evidence before it in this matter. The Tribunal notes that in the Federal Court matter of Sapkota v MIAC [2012] FCA 981 (7 September 2012), Cowdroy J [at 26] held the relevant date for determining when a student has completed the academic requirements for a qualification, is the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the institution. The date of submission of the final piece of assessment is not the relevant date, and nor is the date when the institution informs the student of the results, or the date of the formal conferral of the degree or other qualification at a graduation ceremony.

19. In the view of the Tribunal, the applicant completed the academic requirements for his combined awards on 4 July 2018. Accordingly, the applicant did not satisfy the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. Rather, he did so on the same day as he made the application for the Subclass 485 visa.

20. The Tribunal must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to the applicant. The Tribunal has no power to waive the temporal limitation specified at cl.485.231(3) in relation to completion of the Australian study requirement.

21. Following careful consideration, the Tribunal finds that the applicant’s study for the specified qualifications did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Accordingly, cl.485.231(3) is not satisfied by the applicant.

22. On the basis of the matters outlined above, the Tribunal finds that the applicant does not satisfy 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

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

    K. Chapman
    Member