Borkhuu (Migration)

[2020] AATA 5750

Borkhuu (Migration) [2020] AATA 5750 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bilguun Borkhuu

CASE NUMBER:  1918464

HOME AFFAIRS REFERENCE(S):          BCC2019/1286585

MEMBER:Kira Raif

DATE:19 November 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 of Schedule 2 to the Regulations

Statement made on 19 November 2020 at 9:13pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Engineering – date of completion – letter from the education provider – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC; 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 24 June 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 13 March 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 was not satisfied the applicant met cl. 485.231 because the delegate was not satisfied that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

   Does the applicant hold a specified qualification?

6. 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 Bachelor of Engineering which is a qualification specified in that instrument.

7. 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.

9. In this case, the applicant’s qualification was conferred or awarded by Queensland University, which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offers courses at degree level and above, and which is therefore an educational institution specified in that instrument.

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

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

11. 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.

12. 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.

13. ‘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: LIN 19/085.

14. In this case, the letter of completion from the education provider which the applicant provided with the primary application given stated that the applicant commenced the course on 2 March 2015 and completed all academic requirements for the course on 18 March 2019, after the lodgement of the visa application. The delegate was therefore not satisfied that he met the Australian study requirement’ in the 6 months immediately before the day the visa application was made as required by cl.485.231 and r.1.15F.

15. The Tribunal has before it additional evidence which was not before the delegate. The applicant has provided a further letter from the education provider, dated 25 June 2019, explaining that there was an error in the earlier letter which accompanied the visa application and that the applicant completed the academic requirements of the course on 11 March 2019.  Having regard to that evidence, the Tribunal finds that the applicant completed the course on 11 March 2019, within the 6 months immediately before the application was made. Further evidence before the Tribunal confirms that the course was registered on CRICOS as requiring 208 academic weeks of study, the applicant completed it over a period of 48 months, and it was conducted in English.

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

    ·     the applicant's Bachelor of Engineering, a Degree within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·     the course was 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 years academic study (as per CRICOS registration);

    ·     all instruction was in English; and

    ·     the applicant held a subclass 573 visa authorising study in Australia.

17. 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.

    Kira Raif

    Senior Member