Alhashmi (Migration)

[2019] AATA 4607

Alhashmi (Migration) [2019] AATA 4607 (18 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mona Fareed Alsayedmohamed Yousef Alhashmi

CASE NUMBER:  1914006

HOME AFFAIRS REFERENCE(S):           BCC2019/586440

MEMBER:R. Skaros

DATE:18 October 2019

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 18 October 2019 at 4:13pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completion date – completion of academic requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 31 May 2019 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 visa on 21 February 2019. 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 (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 because the delegate was not satisfied that the applicant had provided the requisite evidence to demonstrate that she met the Australian study requirement in the 6 months ending immediately before the day the application was made.

4. On review, the Tribunal received information from the applicant’s education provider clarifying the day on which the applicant completed her course of study.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   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, 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?

7. 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 Business 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?

8. 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, which specifies that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses (CRICOS) that offer courses at degree level or above.

9. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland which is registered on the CRICOS and offers courses at degree level or above. It is therefore an educational institution specified in the relevant instrument. Accordingly, cl.485.231(2) is met.

   Does the applicant’s study for the specified qualification meet the Australian study requirement?

10. 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.

11. 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.

12. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). For the purposes of this case, ‘1 academic year’ is specified by the Minister to mean at least a total of 46 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000: LIN 19/085. On this basis, 2 academic years would therefore mean at least a total of 92 weeks.

13. The applicant provided to the Department a degree certificate and transcript of academic record in relation to her Master of Business from the University of Queensland indicating that she was awarded the degree on 7 December 2018. The applicant did not provide information regarding the date on which she completed the requirements for the course.

14. On review, the applicant provided the Tribunal with a letter from the University of Queensland, which the Tribunal has verified, indicating that the applicant commenced studies in the Master of Business program on 27 February 2017 and completed the program requirements on 28 November 2018. The letter also confirms that the course was undertaken on a full time basis and delivered on campus solely in English.

15. Information obtained from the Department of Education and Training site regarding the completed course indicates that the course’s duration is 104 weeks.   

16. Having regard to the evidence before it, the Tribunal is satisfied that:

    ·the applicant completed a degree within the meaning of r.2.26AC(6) on 28 November 2018, being in the 6 months immediately before the  application was made;

    ·the applicant’s Master of Business is a CRICOS registered course;

    ·the course was completed in a total of at least 16 calendar months and as a result of at least 2 academic years study;

    ·all instruction was conducted in English; and

    ·that the applicant held a Subclass 500 visa authorising her to study in Australia.

17. Given the above, the Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Accordingly, cl.485.231(3) is met.

18. 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

19. 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.

    R. Skaros
    

    Senior Member