Valderrama Rojas (Migration) - [2024] AATA 1201

Valderrama Rojas (Migration) [2024] AATA 1201 (15 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr David Felipe Valderrama Rojas
Ms Laura Martinez Casas
CASE NUMBER:  2120246
HOME AFFAIRS REFERENCE(S):          BCC2021/1517358
MEMBER:K. Chapman
DATE:15 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 15 May 2024 at 4:08pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – courses completed within 6 months before visa application – date of completion of the academic requirements – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15, 2.26
CASES
Ali v MICMSMA [2021] FCA 1311
Sapkota v MIAC [2012] FCA 981
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 17 December 2021, to refuse to grant the applicants Skilled (Provisional) (Class VC) visas, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The first named applicant applied for the visa on 3 August 2021, including the second named applicant in the visa application. 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 matter, the applicant is seeking to meet the criteria in the Post-Study Work stream, which includes cl 485.231.
The delegate refused to grant the visas because the first named applicant (hereafter ‘the applicant’) did not satisfy cl 485.231 of Schedule 2 to the Regulations, due to a lack of satisfaction that his qualification of the Bachelor of Commerce was completed in the 6 months ending immediately before the day the visa application was made. Therefore, the delegate was not satisfied the applicant met the ‘Australian study requirement’ in the required period prior to the visa application being lodged. On 31 December 2021, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application.
The applicant appeared by video conference before the Tribunal on 18 April 2024 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by video means. The Tribunal records that it finds the applicant to have provided honest evidence at the review hearing.
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 and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)). Alternatively, the ‘Australian study requirement’ may be satisfied in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).
Clause 485.231 does not apply to an applicant who held a prior Subclass 485 visa in certain circumstances: cl 485.231(1A). The issue in the present matter is whether cl 485.231 applies to the applicant and, if so, whether the applicant meets those requirements.
Does cl 485.231 apply to the applicant?
There is no evidence, nor claim, that the applicant held a Subclass 485 visa in the Post-Study Work stream, or in the Replacement stream, when the visa application that is under review was made. Accordingly, as is relevant to the present review, cl 485.231 is applicable to the applicant. Therefore, to be granted the Subclass 485 visa, the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.
Does the applicant hold a specified qualification?
Subclause 485.231(1) requires the applicant to hold a qualification, or qualifications, of a kind specified by the Minister. In this matter, the applicant holds a Bachelor of Commerce. This is a qualification specified in the relevant Instrument.
Therefore, the applicant satisfies cl 485.231(1).
Was the applicant’s qualification conferred or awarded by a specified educational institution?
Subclause 485.231(2) requires the applicant’s qualification to be conferred, or awarded, by an educational institution specified by the Minister. In this matter, the applicant’s qualification was conferred, or awarded, by Griffith University. This is an educational institution specified in the relevant Instrument.
Therefore, the applicant satisfies cl 485.231(2).
Does the applicant meet the Australian study requirement?
There is no suggestion that the applicant was outside of Australia at a relevant time. Therefore, cl 485.231(3) requires the applicant to meet the ‘Australian study requirement’ in the 6 months immediately before the day the Subclass 485 visa application was made.
Pursuant to reg 1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that they have 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.
‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 1.15F(2)). For the purposes of this review, 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 (Cth).
The Tribunal notes that in the Federal Court matter of Sapkota v MIAC [2012] FCA 981 (7 September 2012), Cowdroy J [at 26] held that the relevant date to be considered, with regard to the completion of a degree, is the date when the student satisfies the academic requirements for the award. The date of submission of the final piece of assessment is not the relevant date, nor is the date when the institution informs the student of the results, and nor is the date of the formal conferral of the degree.
Further, in the Federal Court matter of Ali v MICMSMA [2021] FCA 1311 (27 October 2021), McKerracher J [at 39, 48 and 53] held that the academic requirements for a degree are satisfied when the relevant study is assessed to be satisfactory, as distinct from the subsequent dates of ‘ratification and conferral.’ Accordingly, it is the date of completion of the academic requirements for an award that is the relevant date to consider for the purposes of cl 485.231(3). Of note, McKerracher J [at 57-58] held that it is for the Tribunal, on review, to determine the ‘point in time’ that an applicant’s study was assessed to be satisfactory. In doing so, the Tribunal must reach its own state of satisfaction based upon the evidence before it and must not be ‘confined to the view’ of the educational institution. Indeed, the Tribunal may draw ‘sensible or ready inferences’ from the evidence before it.
The present review concerns an applicant who completed a Bachelor of Commerce at Griffith University. The academic transcript of the applicant, submitted to the Department, indicates that this award was conferred by the University on 8 December 2020. Having regard to this transcript, the Tribunal infers that the academic requirements for the award were satisfied on or around November 2020.
At the review hearing, the applicant provided upfront and direct evidence regarding his course completion date. He accepted that he completed the academic requirements for the Bachelor of Commerce more than 6 months immediately before the day the Subclass 485 visa application was made. Additionally, the applicant confirmed to the Tribunal that in his view there was no error in the primary decision.
The applicant explained to the Tribunal that his prior migration advisor gave him incorrect advice regarding when he could make the application for the Subclass 485 visa. As the applicant trusted this advisor, he applied for the Subclass 485 visa on 3 August 2021. The applicant understands this is well after 6 months since the Bachelor of Commerce was conferred upon him. The Tribunal notes the applicant provided honest evidence during the review hearing, even when it was unfavourable to his case.
The applicant asked for discretion to be exercised in his case, by the Tribunal, to grant him the visa because of the erroneous migration advice he received. However, 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.
Following careful consideration, 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 day the Subclass 485 visa application was made. Accordingly, cl 485.231(3) is not satisfied by the applicant. The Tribunal so finds. As the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, being the only relevant visa Subclass, the decision under review must be affirmed.
As the second named applicant applied for the Subclass 485 visa on the basis of being a Member of the Family Unit of the applicant, her review application is also unsuccessful.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
K. Chapman
Member