Azam (Migration)

[2022] AATA 1841

Azam (Migration) [2022] AATA 1841 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junaid Azam

CASE NUMBER:  2117400

HOME AFFAIRS REFERENCE(S):          BCC2020/2601369

MEMBER:K. Chapman

DATE:19 May 2022

PLACE OF DECISION:  Brisbane

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 19 May 2022 at 5:56pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application – Post-Study Work stream – mistake was unintended – applicant substantially complied with the visa application form for the Post-Study Work stream – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.231

CASES

Singh v Minister for Immigration & Anor [2020] FCA 774

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 4 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 7 November 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) (‘the Regulations’), including criteria in different streams. The applicant contends that he applied for the visa in the Post-Study Work stream and made a mistake in the visa application form regarding the choice of stream. For the reasons outlined below, the Tribunal accepts that a genuine mistake was made by the applicant in this regard. The applicant is, therefore, 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.485.223 of Schedule 2 to the Regulations. This is because in their view, prima facie, he applied for the visa in the Graduate Work stream and did not supply evidence he had applied for an assessment of his skills in the nominated skilled occupation at the time of application.

4. The applicant appeared by telephone before the Tribunal on 13 May 2022 to give evidence and present arguments. From time to time, he utilised the services of an Urdu interpreter during the hearing. Following the hearing, the applicant submitted material including his academic results.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal extensively canvassed with the applicant at hearing that, prima facie, it appeared he applied for the Subclass 485 visa in the Graduate Work stream. He explained he applied for the visa himself, made a mistake with the application form and met the criteria for the Post-Study Work stream, outlining his relevant study. The Tribunal has carefully considered the authority of Singh v MICMSMA [2020] FCA 774, which clearly outlines that an applicant cannot change streams in a Subclass 485 visa application once lodged. However, in the view of the Tribunal, it is a question of fact as to the stream that a visa applicant has applied for.

7. When considering the evidence holistically, it is apparent that the applicant completed his studies with a view to applying for the Subclass 485 visa in the Post-Study Work stream. Having had the benefit of taking the evidence of the applicant at hearing, the Tribunal is satisfied with his explanation as to the circumstances regarding his application for the Subclass 485 visa. Therefore, the Tribunal finds that the applicant substantially complied with the visa application form for the Post-Study Work stream. Accordingly, the Tribunal will determine the review application having regard to that stream.

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, 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.

   Does the applicant hold a specified qualification?

9. Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister in an instrument.

10. The applicant holds a Bachelor of Business (Accounting). This is a qualification specified in the relevant instrument.

11. Accordingly, cl.485.231(1) is met.

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

12. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister in an instrument.

13. In this case, the applicant’s qualification was conferred or awarded by the Australian Institute of Business and Management T/A King’s Own Institute, which is an educational institution specified in the relevant instrument.

14. Accordingly, cl.485.231(2) is met.

    Does the applicant meet the Australian study requirement?

15. Subclause 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.

16. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if they satisfy the Minister that they have completed one 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.

17. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.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: instrument LIN 19/085.

18. The Tribunal notes the applicant submitted correspondence from the King’s Own Institute dated 5 November 2020 outlining his academic results. It confirms satisfaction of the academic requirements for his award on 30 October 2020.

19. Following careful consideration of the evidence, including the recently submitted material from the applicant’s education provider, the Tribunal is satisfied that he has satisfied the Australian study requirement (in all relevant respects including, inter alia, course duration, delivery and content).

20. Having regard to the above matters, the Tribunal is satisfied the applicant completed a Degree (as defined in r.2.26AC (6)) in the six months immediately before the visa application was made. The Tribunal is further satisfied that the qualification was as a result of a course that met the requirements of r.1.15F(1). Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application and therefore meets the requirements of cl.485.231(3).

21. In conclusion, the Tribunal finds that the applicant satisfies cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

22. 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.

    K. Chapman
    Member