Yousuf (Migration)

[2024] AATA 2336

Yousuf (Migration) [2024] AATA 2336 (3 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Yousuf

CASE NUMBER:  2115986

HOME AFFAIRS REFERENCE(S):  BCC2020/1502980

MEMBER:Ian Berry

DATE:3 June 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 03 June 2024 at 10:22am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – qualification completed within 6 months before application made – first qualification completed more than 6 months before, and second after application made – academic achievements and misunderstanding of requirements – possibility of referral for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(1), (3)

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

2. The applicant applied for the visa on 7 May 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) (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.

   Delegate’s decision and reasons

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the applicant completed his Master of Engineering (Electrical) qualification from the Queensland University of Technology (QUT) which provided a letter of completion stating that qualification was completed on 3 July 2020, which was after he had made his application.

4. The applicant had also attained a Master of Engineering Management qualification from the QUT which provided a letter stating that the completion date of that qualification was 3 July 2019, more than six months ending immediately before the date of the visa application.

5. The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments. The Tribunal only received oral evidence from the applicant.  

6. The applicant was not represented in relation to the review. The applicant was accompanied by a relative who assisted the applicant at the hearing and in making submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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. In this case, the applicant holds a Master of Engineering Management and Master of Engineering Both of which were attained from the QUT which are a qualifications specified in that instrument.

10. Therefore, the applicant satisfies cl 485.231(1).

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

11. Clause 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 14/010.

12. In this case, the applicant’s qualification was conferred or awarded by QUT which is an educational institution specified in that instrument.

13. Therefore, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

14. Clause 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.

15. Under reg 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.

16. ‘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 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: LIN 19/085.

17. The evidence placed before the Tribunal concerning the applicant’s attainment of qualifications state[1]:

    (a) Master of Engineering Management (by coursework) by study between 23 July 2018 and 30 June 2019.

    (b)Master of Engineering (by coursework) by study between 22 July 2019 and 30 June 2020.

    [1] Records in PRISMS and Overseas Student Confirmation of Enrolments (CoE).

18. The applicant’s six month window in which to complete either of his qualifications must be between on and from 6 November 2019 and 6 May 2020.

19. The QUT provided a Confirmation of Course Completion certificate dated 6 July 2020, stating the applicant completed his Master of Engineering (Electrical) on 3 July 2020 which is not with the window.

20. Also, the QUT provided a Confirmation of Course Completion certificate dated 8 July 2019. It stated the applicant  completed his Master of Engineering Management on 3 July 2019, which is not within that six month window.

21. The applicant submitted that if the Tribunal has any discretion to remit his application, this is such a case where it should be exercised. The Tribunal does not have that discretion. Clause 485.231(3) is a time of application criteria and the interpretation is clear as to the applicant’s obligation to make his application within the window of six months. It is most regrettable for both qualifications to be both before and after that window.

22. The Tribunal finds that the applicant’s study for the specified qualifications did not satisfy the Australian study requirement in the 6 month period immediately before the date of the visa application.

23. Accordingly, cl 485.231(3) is not met.

24. 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.

    Referral under sec 351

25. The applicant has requested that the Tribunal refer the case to the Department for consideration by the minister pursuant to s.351 which gives the minister a discretion to substitute for a decision of the tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal refers to the applicant’s academic achievements of two Master qualifications achieved but through a miscalculation failed to properly make his application. The evidence is that his father in law assisted him with the process but failed to fully understand what was required.

26. It is now for the applicant to put before the Department relevant information and evidence for the Department to have this matter referred to the Minister.

    DECISION

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

    Ian Berry
    Member