Bhole (Migration)

[2020] AATA 3249

Bhole (Migration) [2020] AATA 3249 (16 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chaitalee Girish Bhole

CASE NUMBER:  1820629

HOME AFFAIRS REFERENCE(S):          BCC2018/1668713

MEMBER:Kira Raif

DATE:16 June 2020

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(3) of Schedule 2 to the Regulations

Statement made on 16 June 2020 at 12:13pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream –applicant holds a specified qualification– Australian study requirements met – qualification is a registered course – applicant’s degree was completed in a total of 16 calendar months– 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, cls 485.111, 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 27 June 2018 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 15 April 2018. 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 the applicant completed her study in the 6 months before the application was made. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case because the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. 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

5. 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.

6. 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.

7. 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.

8. ‘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.

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

9. The applicant provided to the Tribunal a copy of the primary decision. It indicates that  the applicant stated on the application form that she completed a Master of Information Technology but had not provided a letter of completion. The delegate wrote to the applicant requesting evidence of course completion but that was not provided and the delegate was not satisfied the applicant met cl. 485.231(3).

10. The applicant provided additional evidence to the Tribunal. This includes her academic transcript and a letter of completion issued by Charles Sturt University on 29 June 2018. It states that the applicant completed a Master of IT (Business Analysis / IT Management) between June 2016 and October 2017 and met course requirements on 10 November 2017. The application for the visa was made 15 April 2018. As such, the Tribunal is satisfied the course was completed in the 6 months immediately before the application was made.

11. The Tribunal is satisfied that the Master of IT at Charles Sturt University is a registered course. According to the letter of completion, it was completed between 29 June 2016 and 10 November 2017 and the instruction was in English. The Tribunal is satisfied the study was completed in a total of at least 16 calendar months. The CoE for the applicant’s course shows that  the course was registered for two years and the Tribunal is satisfied the course was completed as a result of 2 academic years. The applicant held the appropriate visa authorising study. As such, 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.

    Conclusion

12. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231(3). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

13. 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(3) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member