Chalamcharla (Migration)

[2023] AATA 4452

Chalamcharla (Migration) [2023] AATA 4452 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhaskar Chalamcharla

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  2115349

HOME AFFAIRS REFERENCE(S):          BCC2020/1812014

MEMBER:Peter Katsambanis

DATE:30 October 2023

PLACE OF DECISION:  Perth

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 30 October 2023 at 9:58am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – IMMI 13/013 – Master of Business and Project Management – completion date – element of communication – advised in writing of final results – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; 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 26 October 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 28 June 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, 485.232 and 485.233.

3. 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 that the applicant met the Australian study requirement in subclause 485.231(3).

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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 Business and Project Management which is a qualification specified in that instrument.

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

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

9. 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.

10. In this case, the applicant’s qualification was conferred or awarded by Asia Pacific International College which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

12. Clause 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.

13. 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.

14. ‘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)). 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.

15. The issue in dispute in this case is whether the applicant completed his relevant qualification in the 6 months immediately before the application was made.

16. The applicant made his application on 28 June 2020.

17. In a letter dated 28 January 2020 from the applicant’s education provider, it is stated that the applicant’s course completion date for his Master of Business and Project Management was 20 December 2019. The same date is listed in this letter as being the date that the applicant met his academic requirements for the course. This date is more than 6 months immediately before the application was made.

18. Based on the information in this letter, the delegate found that the applicant had not completed a relevant qualification in the 6 months immediately before he made his application and therefore did not meet the Australian study requirement in cl 485.231(3).

19. The applicant and his representative have submitted claims to the Tribunal that 20 December 2019 was not the date on which the applicant met the academic requirements for his relevant qualification. In support of these claims, they have provided the Tribunal with further documentation that had not previously been provided to the Department. These documents include the following:

    ·The applicant’s graduation certificate for his Master of Business and Project Management from Asia Pacific International College, which is dated 14 August 2020.

    ·An email from the student services department of Asia Pacific International College dated 17 January 2020 and addressed to the applicant. This email advises students, including the applicant, that results for the final semester of 2019 have been officially released on the date of the email and provides details about how the results can be accessed.

20. As pointed out by the applicant’s representative in his submission to the Tribunal, the Department regularly publishes guidelines on how it interprets various legislative and regulatory requirements. In relation to the way it interprets and applies the term ‘completion date’ for the purposes of applications for a subclass 485 visa, the Department provides the following commentary on its publicly accessible website:

    Completion date

    Applications for a subclass 485 visa must be made within six months of the date of course completion.

    The date of course completion is the date you first met the academic requirement for the award or your degree, diploma or trade qualification and were advised in writing by:

    ·letter

    ·publication in a newspaper

    ·publication on the internet

    ·email

    ·bulletin board at the tertiary institution.

    This date should not be confused with the date of conferral of award. The date of conferral is the date that the student actually receives their qualification, for example, at a graduation ceremony.[1]

    [1] Department of Home Affairs, Meeting the Australian study requirement (homeaffairs.gov.au), accessed 30 October 2023.

21. This publicly available information from the Department makes it clear that the definition of ‘completed’ as defined in reg 1.15F(2) requires an element of communication from an education provider to a student that they have met the academic requirements for the award of a particular qualification. This places an onus on an education provider to make this information available to students. Accordingly, the relevant date that a student is taken to have met the academic requirements for the award of a qualification is therefore the date on which the particular student was advised in writing of their final results rather than any other date, such as the date of final lessons or the date of final exams or the date on which an award is conferred.

22. In the applicant’s case, it is clear from the email he received from his education provider on 17 January 2020 that this was the date on which he was advised of his final results for the relevant qualification. Accordingly, 17 January 2020 must be taken to be the date on which the applicant met the academic requirements for his relevant course and therefore completed his relevant qualification for the purposes of reg 1.15F(2) and cl 485.231(3).

• As 17 January 2020 is within the 6-month period immediately before the application was made, the Tribunal is satisfied that the applicant completed his relevant qualification in the 6 months immediately before the application was made on 28 June 2020.

• The Master of Business and Project Management at Asia Pacific International College is a registered course as defined in reg 1.03. Academic transcripts provided to the Department and the Tribunal confirm that the applicant undertook his studies at this education provider from 2017 to 2019, which is more than 16 calendar months, and was the result of at least 2 academic years of study. All instruction was conducted in English and the applicant was the holder of a valid Australian student visa at all relevant times.

1. Based on the above findings, 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.

2. Accordingly, cl 485.231(3) is met.

3. 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

4. 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.

   Peter Katsambanis
   Member