Tam (Migration)

[2021] AATA 2569

Tam (Migration) [2021] AATA 2569 (3 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Hoi Ki Joshua Tam

CASE NUMBER:  2003751

HOME AFFAIRS REFERENCE(S):          BCC2019/5745433

MEMBER:Wan Shum

DATE:3 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2021 at 2:29pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completion date – application lodged prior to completion of course – no discretion – decision under review affirmed

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

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 26 February 2020 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 Subclass 485 visa on 13 November 2019. 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 the information provided indicated that the applicant had completed his course on 28 November 2019, after the visa application was lodged. The delegate found that he did not satisfy cl.485.231 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 12 May 2021 by video using MS Teams 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. 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.

7. The applicant indicated on the visa application form that he had completed the following study in Australia: Masters by Coursework Degree, Doctor of Medicine at University of Queensland from 8 February 2016 to 10 December 2019.

   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 IMMI 13/013. In this case, the applicant holds a Masters Degree which is a qualification 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 University of Queensland, which is an Australian university registered on CRICOS that offers courses at degree level and above. It is thus 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 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.

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, ‘2 academic years’ is at least a total of 92 weeks, being the duration of a course or courses registered under the Education Services for Overseas Students Act 2000 (ESOS Act): IMMI 09/040.

16. The applicant provided a copy of his official academic transcript from the University of Queensland which provides a conferral date of 10 December 2019 for the degree of Doctor of Medicine and 28 November 2019 as the date that program requirements were completed. The conferral date also appears on the Australian Higher Education Graduation Certificate. On the information before the Department, the officer was not satisfied that the applicant met the Australian study requirement in the 6 months before the visa application was made.

17. On review, the applicant provided a statement in which he says that he had believed that the final day of classes was the completion date and had made an honest mistake. He also provided letters from his employer, West Moreton Hospital Health Service, regarding the significant impact on their services if he was not able to remain on a visa permitting him to work, as well as a letter from his fiancé regarding their circumstances. He provided evidence that they had purchased a property together, which his fiancé explains in her letter is an off-the-plan apartment which they intend to live in together. She expressed concern of the impact on her and her career of a decision to refuse him the visa, stating that she would have to leave Australia so that she could remain with him.

18. During the hearing, the applicant said that he had proceeded with his application to comply with requirements with the job offer he had secured and that it had occurred during a stressful period. He explained that his classes had finished by early November and that his exams took place between 11 and 15 November, but that he knew he would pass even if he did poorly in the exams. While this may have been the case, in order to satisfy the Australian study requirement, the student must have met the requirements for the award of the qualification which is a determination to be made by the University. The Tribunal noted that it appeared that he had applied for the visa in the middle of his exams, which would have been prior to being found by the University to meet the requirements for award of the degree. The applicant concurred and said that it was his mistake.

19. While the applicant had provided a logical explanation as to why he lodged his application prior to completing his degree, the criterion requires that the studies were completed in the 6 months immediately before the date of the visa application which there is no dispute was not met in this case. The Tribunal cannot make allowances for misunderstanding the visa application process or exercise any discretion in respect of this criteria. It has no power to do so. As the applicant completed the degree after he lodged the visa application, the Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

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

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

    Wan Shum
    Member