Debnath (Migration)

[2023] AATA 3971

Debnath (Migration) [2023] AATA 3971 (24 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Songita Debnath
Mr Suman Bhowmick
Mr Sporsho Bhowmick

CASE NUMBER:  2112764

HOME AFFAIRS REFERENCE(S):          BCC2019/881068

MEMBER:Mary Sheargold

DATE:24 August 2023

PLACE OF DECISION:  Melbourne

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(3) of Schedule 2 to the Regulations.

Statement made on 24 August 2023 at 1:58pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Business Administration – course completion date – complete copy of the completion letters – 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 7 September 2021 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 14 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 refused to grant the visas because the first named applicant (the applicant) did not satisfy cl 485.231(3) of Schedule 2 to the Regulations because she did not provide sufficient evidence regarding the date on which she actually completed her degrees.

4. The applicants appeared before the Tribunal by MS Teams video link on 23 August 2023 to give evidence and present arguments.

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 meet the Australian study requirement?

7. 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.

8. 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.

9. ‘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.

10. The applicants applied for the visas on 14 January 2020.  They have provided the Tribunal with a copy of the letter of the same date from Holmes Institute, confirming that Songita Debnath completed her Master of Business Administration degree on 18 November 2019.  Unfortunately, Mrs Debnath did not provide this part of the completion letter to the delegate, and the delegate could not rely on the date on the copies of her testamurs for her double Masters degrees, 2 December 2019, as the completion date.  In light of the new evidence furnished to the Tribunal on 17 August 2023, being the complete copy of the completion letters from Holmes Institute, the Tribunal is satisfied that the first named applicant has completed one or more courses of study within 6 months of the date immediately before she applied for this visa.

11. The Tribunal is satisfied that the Master of Professional Accounting and Master of Business Administration double Masters degrees are a registered course, being courses of education provided by institutions that are registered under Division 3, Part 2 of the Education Services for Overseas Students Act 2000 (Cth) to provide the course to overseas students. Therefore, r.1.15F(1)(a) is met.

12. Paragraph 1.15F(1)(b) of the Regulations requires that the qualifications to be relied upon to satisfy the Australian study requirement were completed as a result of a course or courses of study in a total of at least 16 calendar months.  The completion letter provided by Holmes Institute states the applicant commenced study for the Master of Professional Accounting component of the double degree on 12 March 2018, concluding on 21 July 2019, and that she commenced the Master of Business Adminisration component of the course on 15 July 2019 to 18 November 2019.  Therefore, the total time take to complete the courses for the award of the degrees was greater than 16 calendar months, and the requirement in r.1.15F(1)(b) is met.

13. The evidence before the Tribunal is that the combined Master of Professional Accounting and Master of Business Administration degrees undertaken at Holmes Institute has a duration of 156 weeks.  Therefore, the first named applicant has completed at least 2 academic years of study, and the Tribunal is satisfied that the course language for both qualifications was English.  Accordingly, the Tribunal is satisfied that the requirements in rr.1.15F(1)(c) and (d) are met.

14. Based on Departmental records, the Tribunal is satisfied that the first named applicant held a Subclass 500 student visa authorising her to study whilst undertaking her qualification.  Therefore, r.1.15F(1)(e) is met.

15. Based on all the evidence before it, the Tribunal finds that the first named applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

17. On the basis of the above findings, the Tribunal finds that the first named 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, including in relation to the secondary applicants.

    DECISION

18. 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(3) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member