21156350 (Migration)

[2023] AATA 3239

21156350 (Migration) [2023] AATA 3239 (3 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Raja Ramesh Reddy (MARN: 1804195)

CASE NUMBER:  2116350

MEMBER:Wan Shum

DATE:3 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

·cl 485.231 of Schedule 2 to the Regulations

Statement made on 03 August 2023 at 9:10am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – course completed within 6 months before application made – letter from university states ‘completed requirements’ on one date (outside 6 months) and ‘award completion date’ on another (within 6 months) – other documentation confirms second date – decision under review remitted

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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

2. The applicant applied for the visa on 26 January 2021. 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 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 applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations the information before the delegate reflected that the course of study was completed on 8 July 2020, which is more than 6 months before the application was made.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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, 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)) or, 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)). The issue in the present case is whether the applicant meets those requirements.

7. On 26 January 2021, the applicant lodged an Application for Temporary Graduate visa form electronically which was completed with the following details under Australia qualifications:

   Qualifications: Masters (by coursework) degree;

   Course name: Master of Information Technology(networks and Information)

   Institution name: Central Queensland University

   Campus: Melbourne CBD

   Postcode of campus: 3000

   Course commencement date: 09 Jul 2018

   Course completion date: 27 Jul 2020

8. He also provided details of an overseas qualification, but this is not presently relevant.

9. The applicant submitted a letter from Central Queensland University dated 7 August 2020 which stated:

   This letter is to advise that on 08 July, 2020, [the applicant], [Student number], born [Date], completed the requirements for the award of Master of Information Technology (Networks and Information Security) (CRICOS Code 083576F) from CQUniversity with an award completion date of the twenty-seventh day of July, 2020.

10. Based on this information, the delegate found that the Masters course was completed on 8 July 2020, which is more than 6 months before the application was made such that the applicant did not satisfy cl 485.231(c).

11. The applicant had also submitted a copy of his Academic transcript issued by the University which reflects that the degree was conferred on 27 July 2020. A copy of the Master of Information Technology degree qualification issued indicates that the degree was conferred on 27 July 2020.

12. On review, a second letter was provided from the University dated 18 May 2023 which states that the applicant “was admitted to said course on the 15/03/2018 and passed on the 27/07/2020”. The Tribunal notes that the course admission date of 15 March 2018 does not appear to align with the course start date on PRISMS or as reflected in the academic transcript. The Tribunal notes that the applicant undertook an earlier course with the University with the course name of English for Academic Purposes from March 2018. The Tribunal attempted to contact the University to seek clarification as to the apparent error in the letter of 7 August 2020 but was informed that the applicant needed to agree to release the information or contact the university directly himself because of privacy concerns.

13. On 2 August 2023, the Tribunal received a response from the University confirming that the applicant completed the CC54 - Master of Information Technology (Networks and Information Security) course on 27 July 2020.

14. On the evidence provided, the Tribunal finds that the applicant completed a Master of of Information Technology (Networks and Information Security) from Central Queensland University on 27 July 2020.

    Does the applicant hold a specified qualification?

15. 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 a Master of Information Technology which is a qualification specified in that instrument. Accordingly, cl 485.231(1) is met.

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

16. 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.

17. In this case, the applicant’s qualification was conferred or awarded by applicant completed a Master of International Relations which is an educational institution specified in that instrument. Accordingly, cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

18. 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.

19. 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 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.

20. ‘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.

21. The information before the Tribunal reflects that the Master of Information Technology course is a registered course and the applicant was enrolled in and undertook this course from 9 July 2018 to 27 July 2020. This means that the course was completed by the applicant in 24 months. The course was registered for 104 weeks which is more than 2 academic years study as defined. The Tribunal further finds that all instruction was in English and that the applicant undertook the course while in Australia as the holder of a student visa authorising the applicant to study.

22. As the application was made on 26 January 2021, the applicant’s study for the Master degree qualification needed to have been completed within the 6 month period from 25 July 2020 to 25 January 2021, being the date before the visa application was lodged. The Tribunal has given its findings above in respect of the date the applicant completed a Master of Information Technology course for the purposes of the Australian study requirement, which it accepts was on 27 July 2020. This means that the applicant satisfied the Australian study requirement in the 6 months ending immediately before the date of the visa application. Accordingly, cl 485.231(3) is met.

23. On the basis of the above findings, the Tribunal finds that the applicant meets cl 485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

    ·cl 485.231 of Schedule 2 to the Regulations.

    Wan Shum
    Member