Ceglys Buscariolli (Migration)

[2022] AATA 1999

Ceglys Buscariolli (Migration) [2022] AATA 1999 (2 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alick Ceglys Buscariolli

REPRESENTATIVE:  Mr Mohammad Ahasan Ali (MARN: 0851085)

CASE NUMBER:  2112549

HOME AFFAIRS REFERENCE(S):          BCC2019/740680

MEMBER:R. Skaros

DATE:2 May 2022

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 02 May 2022 at 6:19pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application – 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

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 30 August 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 6 January 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. 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 evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application as required by cl.485.231.

4. The applicant was represented in relation to the review.

5. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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 Information Technology (Mobile Applications Development) 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?

9. 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.

10. In this case, the applicant’s qualification was conferred or awarded by the Academy of Information Technology (AIT) 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. Accordingly, cl 485.231(2) is met.

    Does the applicant 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 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.

14. In this case, the applicant initially provided a testamur and an academic transcript for his course to the Department. The testamur indicates that the applicant was awarded a Bachelor of Information Technology (Mobile Applications Development) on 4 December 2019. The academic transcript issued on 19 November 2019 for the course shows subjects undertaken by the applicant between 13 March 2017 and 15 July 2019. This evidence however does not state the date when the course was completed within the meaning of r.1.15F.  The delegate requested the applicant to provide additional evidence to show the date he completed the course. In response to the delegate’s request, the applicant provided a letter from the AIT dated 12 March 2020. This letter certified that the applicant successfully completed his course at AIT, and that the course’s commencement date was 19 March 2018 and completion date was 1 March 2020. Based on this information, the delegate found that the applicant completed his course after the visa application was made.

15. On review the applicant provided a letter from the AIT dated 16 September 2021. The letter states relevantly that the applicant’s Bachelor of Information Technology (Mobile Applications Development) course’s start date was 13 March 2017 and the course’s end date was 27 October 2019. The letter explained that the previously advised completion date of 1 March 2020 was incorrect because that date was automatically applied by the system based on the date listed on the student’s Confirmation of Enrolment (CoE).

16. On 2 March 2022, the Tribunal wrote to the AIT seeking information on when the applicant submitted all assessment items and when the evaluation of assessments and exams was completed. The Tribunal received a response on 4 April 2022 advising that the applicant completed his studies on 27 October 2019 and that the degree was conferred on 4 December 2019.

17. On the evidence before it, the Tribunal is satisfied that the applicant completed his course on 27 October 2019, which is within the 6 months immediately before the application was made.

18. Further evidence before the Tribunal confirms that the applicant’s Bachelor of Information Technology (Mobile Applications Development) with the AIT was registered on CRICOS as requiring 156 weeks academic weeks of study, the applicant completed it over a period of over 16 calendar months and it was conducted in English. The course was conducted in Australia while the applicant held a Subclass 500 visa, permitting him to undertake the relevant study during this period.

19. 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 Information Technology (Mobile Applications Development), 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 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

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

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

21. 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

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.

    R. Skaros

    Senior Member