Cherono (Migration)

[2024] AATA 313

Cherono (Migration) [2024] AATA 313 (21 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Linda Cherono

REPRESENTATIVE:  Mr Glenn Frederick Robert Rayner (MARN: 0533444)

CASE NUMBER:  2116518

HOME AFFAIRS REFERENCE(S):          BCC2020/2349076

MEMBER:George Hallwood

DATE:21 February 2024

PLACE OF DECISION:  Adelaide

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 21 February 2024 at 4:36pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant holds a masters by coursework degree –applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.15, 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 2 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 22 September 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 they had not completed their coursework for their International Master of Business Administration qualification in the last 6 months ending immediately before the day the application was made.

4. In reaching its decision 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, pursuant to s 360(2)(a) of the Act.

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

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, 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?

8. 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 LIN 23/023. In this case, the applicant holds a masters by coursework degree in International Master of Business Administration which is a qualification specified in that instrument.

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

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

10. 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 LIN 23/021.

11. In this case, the applicant’s qualification was conferred or awarded by the University of South Australia which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

13. Clause 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.

14. 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.

15. ‘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.

16. A Confirmation of Studies letter from the University of South Australia dated 10 March 2021 sets out, and the Tribunal is satisfied that:

    ·     The applicant completed her degree as defined in reg 2.26AC(6) on 18 July 2020 some two months prior to her application;

    ·     The qualification was as a result of a course that was:

    ·a registered course (CRICOS Code 081137A) (CRICOS Provider 00121B)

    ·completed over two years, as a result of two years of academic study; and

    ·a course for which the language of instruction was English.

17. During the period of study from 30 July 2018 until 18 July 2020 the applicant held a subclass 500 (Student) Visa granted on 15 June 2018 and this visa authorised study.

18. The applicant satisfied the Australian study requirement on 18 July 2020 which was in the 6 months immediately before the day the application was made.

19. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

20. Accordingly, cl 485.231(3) is met.

    CONCLUDING PARAGRAPHS

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.

    George Hallwood
    Member