D Couto (Migration)

[2020] AATA 3159

D Couto (Migration) [2020] AATA 3159 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Belinda Ann D Couto
Miss Alison Carol Ann D Couto
Ms Amber Maria Josephine D Couto

CASE NUMBER:  2000334

HOME AFFAIRS REFERENCE(S):          BCC2019/4321839

MEMBER:K. Chapman

DATE:24 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations.

Statement made on 24 July 2020 at 6:33pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –post-study work stream – Australian study requirement – specified qualification within six months before application made – evidence confirming date course completed – letter and academic transcript from Australian university – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)

Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)

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 20 December 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant applied for the visa on 29 August 2019, including the second and third named applicants in that application. 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 refused to grant the visas because the first named applicant (hereafter ‘the applicant’) did not satisfy cl.485.231 of Schedule 2 to the Regulations, purportedly as she failed to provide evidence confirming the date of course completion for her Master of Applied Linguistics.

4. On 7 January 2020, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application. In addition, the applicant provided a letter from the University of Queensland dated 23 December 2019, confirming that she completed the course requirements for the Master of Applied Linguistics on 19 July 2019. She also supplied a copy of her academic transcript to the Department with her visa application. The Tribunal has verified the veracity of the aforementioned information with the University of Queensland.

5. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. Accordingly, 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 Master of Applied Linguistics which is a qualification specified in that instrument. Accordingly, cl.485.231(1) is satisfied.

   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. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland which is an educational institution specified in that instrument. Accordingly, cl.485.231(2) is satisfied.

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

10. 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.

11. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if they satisfy the Minister that they have completed one 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.

12. ‘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: instrument LIN 19/085.

13. The Tribunal notes the applicant provided a letter from the University of Queensland dated 23 December 2019 confirming that she completed the Master of Applied Linguistics on 19 July 2019, having commenced that study on 24 July 2017. The Tribunal confirmed the veracity of this information with the University of Queensland. The Tribunal notes that the aforementioned submitted material is consistent with the applicant’s claims in her visa application. Following careful consideration of the evidence, the Tribunal finds that the applicant completed the academic requirements for the Master of Applied Linguistics on 19 July 2019.

14. Based on the above evidence, the Tribunal is satisfied the applicant completed a Degree (as defined in r.2.26AC (6)) in the six months immediately before the visa application was made. The Tribunal is further satisfied that the qualification was as a result of a course that met the requirements of r.1.15F(1). Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application and she meets the requirements of cl.485.231(3).

15. On the basis of the above, 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.

16. The second and third named applicants will have their respective claims reassessed by the Department given the outcome of this decision.

    DECISION

17. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations.

    K. Chapman
    Member