TRAN (Migration)

[2017] AATA 1875

TRAN (Migration) [2017] AATA 1875 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lan TRAN

CASE NUMBER:  1613898

DIBP REFERENCE(S):  BCC2016/2129970

MEMBER:Wan Shum

DATE:11 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 11 October 2017 at 2:53pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Application lodged before study requirements were completed

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.231, cl 485.321

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 on 11 August 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 June 2016. 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).

3. The delegate refused to grant the visa finding that the applicant did not satisfy the Australian study requirement in cl.485.321 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 28 September 2017 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. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which includes cl.485.231 of Schedule 2 to the Regulations. This criterion requires that the applicant must hold a qualification or qualifications of a kind specified by the Minister and each qualification satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets this requirement.

7. 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; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·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.

8. ‘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 specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (IMMI 09/040).

9. The applicant indicated on the visa application form that she had completed the following study in Australia: Bachelor of Business (International Hotel and Resort Management) at Blue Mountains International Hotel Management School at Torrens University (BMIHMS).

10. However, the applicant provided a confirmation letter from BMIHMS dated 22 June 2016 stating that she is due to complete the Bachelor of Business (International Hotel and Resort Management) on 30 June 2016.

11. The information provided by the applicant therefore indicates that she did not complete her course until 30 June 2016. The applicant provided a completion letter dated 23 August 2016 and a copy of her academic transcript. The letter states that she was enrolled for the course from 2 October 2013 to 30 June 2016 and that she had completed all the course requirements and she was eligible to graduate. The letter does not set out the date at which she completed the course requirements.

12. At the hearing, the applicant told the Tribunal that as her student visa was going to cease on 30 June 2016, she had applied for the Subclass 485 visa earlier than her course completion date. The applicant indicated that she was told she passed her final subject around the time her application was lodged, but confirmed that it was after the application was made. The Tribunal later asked the applicant to provide a further letter from her education provider to clarify the course completion date.

13. The applicant has now provided a completion letter from BMIHMS dated 5 October 2017 which states that the applicant completed all course requirements with her final results being ratified by the Exam Board on 1 July 2016.

14. This letter thus confirms that the applicant met the requirements for the award of the qualification after the visa application was lodged.

15. The Tribunal accepts that the applicant had thought it was important that she apply for the Subclass 485 visa before her student visa ceased. But, this means that her application was lodged before she completed the requirements for the award of the Bachelor degree. The Tribunal is also aware that the applicant is currently working for Rendezvous Hotel Perth Scarborough. However, the Tribunal has no power to refer the application back to the Department for reconsideration in these circumstances. It must apply the legislation and the criterion in issue does not allow for consideration of extenuating circumstances such as these. On the evidence before it, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months ending immediately before the visa application was lodged. The applicant thus does not meet the requirements of cl.485.231 of Schedule 2 to the Regulations because the application was lodged prior to the applicant completing her qualification.

16. As such the applicant does not satisfy a criterion for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Wan Shum
    Member