Amal Dev (Migration)

[2024] AATA 211

Amal Dev (Migration) [2024] AATA 211 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amal Dev

CASE NUMBER:  2119228

HOME AFFAIRS REFERENCE(S):          BCC2021/351467

MEMBER:Karen McNamara

DATE:9 February 2024

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 09 February 2024 at 8:39am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –post-study work stream – Australian study requirement – requirement that coursework completed within 12 months before application made – first notification of completion gave date more than 12 months before – later notification giving date within 12 months confirmed as correct – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1995 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)(b)

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 13 December 2021, to refuse to grant Mr Amal Dev (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 10 March 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 the criteria in Subdivision 485.23.

3. The decision record provided to the Tribunal by the applicant, records that on 13 December 2021, the delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant met the Australian study requirement because he did not complete his coursework in the period of 12 months ending immediately before the day the visa application was made: cl.485.231(3)(b).

4. The applicant lodged an application for review with the Tribunal on 13 December 2021. The review application was accompanied by a copy of the delegate’s decision, a letter and email from the University of South Australia dated 13 December 2021. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

5. Information before the Tribunal shows correspondence between the applicant and the University of South Australia in which the applicant asserts the University erred with details of his studies including the date, he completed the qualification. The applicant has provided to the Tribunal copies of this correspondence including an email confirmation by the University as to the correct completion date of 12 December 2020. 

6. On 5 February 2024, the Tribunal wrote to the University seeking confirmation of the date the applicant completed his studies in Master of Engineering (Engineering Management) and authenticity of the completion letter and email dated 13 December 2021.

7. On 7 February 2024, the University provided a response to the Tribunal confirming, the authenticity of the completion letter and email. The University additionally confirmed the applicant completed his qualification in Master of Engineering (Engineering Management) on 12 December 2020.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary for the applicant to appear before the Tribunal to give evidence in relation to the decision under review. The Tribunal has therefore made a decision on the papers before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)).

11. The issue in the present case 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?

12. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). 

13. There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b).

14. The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

    Does the applicant hold a specified qualification?

15. 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 (Engineering Management) which is a qualification specified in that instrument.

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

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

17. 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 13/031.

18. In this case, the applicant’s qualification was conferred or awarded by the University of South Australia which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

20. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made 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. In this case the applicant was outside Australia during 1 January 2020 to 16 February 2020.

21. 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.

22. ‘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.

23. At the time of application, the applicant declared he had completed a Master of Engineering (Engineering Management), undertaken from 25 February 2019 to 12 December 2020. A letter issued by the University of South Australia dated 8 January 2021 stated that the applicant completed his studies on 12 January 2020. The delegate therefore found, as this was more than 12 months ending immediately before the day the application was made, this qualification could not be used to satisfy the study requirements for the visa.

24. The applicant provided the Tribunal a notification of completion issued on 13 December 2021 by the University of South Australia, stating he completed his Master of Engineering (Engineering Management) on 12 December 2020. The authenticity of the University’s notification of completion, and applicant’s completion date was confirmed by the University of South Australia on 7 February 2024.

25. The Tribunal therefore accepts 12 December 2020, as the date that the applicant was found to have met the academic requirements, and thus ‘completed’ the course within the meaning of reg 1.15F.

26. Further evidence before the Tribunal confirms that the Master of Engineering is a ‘degree’ within the meaning of reg. 2.26AC(6) and that it was undertaken at the University of South Australia which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) to provide courses to overseas students as required by reg 1.03.

27. The course was registered on CRICOS as requiring 107 weeks of study, the applicant completed the course between 25 February 2019 to 12 December 2020, a period of 2 academic years and the course was conducted in English. The course was conducted in Australia and the applicant held a visa permitting the relevant study during this period.

28. In relation to the various components of the Australian study requirement, the Tribunal is satisfied on the evidence before it that:

    ·The applicant's Master of Engineering (Engineering Management) is a degree within the meaning of reg 2.26AC(6);

    ·The course was a registered course within the meaning of reg 1.03;

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

    ·All instruction was in English; and

    ·The course was conducted in Australia while the applicant held a visa authorising study in Australia.

29. The Tribunal is satisfied that the requirements of reg 1.15F are met. Further, the visa application was made on 10 March 2021 and the applicant completed the course on 12 December 2020, which is within the period of 12 months immediately before the date the application was made.

30. Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement within the relevant period and that the requirements of cl 485.231(3) are met.

31. On the basis of the above findings, the Tribunal finds that the applicant meets cl 485. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. 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.

    Karen McNamara
    Member