Gautam (Migration)

[2020] AATA 4011

Gautam (Migration) [2020] AATA 4011 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nawraj Gautam
Mrs Eliza Sapkota Gautam

CASE NUMBER:  1902935

HOME AFFAIRS REFERENCE(S):          BCC2018/3578369

MEMBER:Denis Dragovic

DATE:24 July 2020

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 of Schedule 2 to the Regulations

Statement made on 24 July 2020 at 9:58am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completed in the previous 6 months – evidence of course completed – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231; rr 1.03, 1.15, 2.26

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 8 February 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 September 2018. 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 (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because, as is recorded in the decision record:

   On the 4 October 2018 the applicant provided an Academic Transcript confirming course requirements completed, however it does not state the date the applicant completed the course. On 3 December 2018 the application was assessed by an officer of the Department and an email was sent to [email protected] requesting completion letter from the Australian education provider, showing course commenced date, completion date and study load. The applicant had 28 days to provide requested documents. As at 8 February 2019 the applicant did not respond to the request, nor indicate they intended to comply. The applicant has not provided a completion letter from the Australia education provider, confirming course commencement date, completion date or study load. Therefore, the applicant’s Master of Information Technology cannot be used to satisfy the study requirement for this visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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?

5. 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 Information Technology (Computer Networking) which is a qualification specified in that instrument.

6. Accordingly, cl.485.231(1) is met.

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

7. 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 which requires that the educational institution be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.

8. In this case, the applicant’s qualification was conferred by Charles Sturt University which is an educational institution specified in that instrument.

9. Accordingly, cl.485.231(2) is met.

   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 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.

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)).

13. 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.

14. The Master of Information Technology at the Charles Sturt University is registered on CRICOS under the Education Services for Overseas Students Act 2000 and as such I am satisfied that it is a registered course.

15. The course is registered as a 104-week course. The applicant’s transcript notes that the applicant attended two years of courses. As such I find that the applicant completed at least 16 calendar months study on a course that was in total at least two academic years study.

16. The statement of completion document provided by the Charles Sturt University states that the course was taught in English.

17. I have reviewed the applicant’s visa history and note that he arrived on the 4 June 2016 on a TU573 (Higher Education Sector) visa and remained onshore through the teaching periods of his course apart from a single three-week period. As such I am satisfied that the applicant undertook his studies while in Australia as the holder of a visa authorising the applicant to study.

18. The delegate refused the visa based upon not having received a certificate of completion and as such not knowing the date of when the applicant completed his course. The Tribunal received a copy of the certificate of completion submitted by the applicant along with a statutory declaration stating he had received a request by the Department to provide the certificate along with a medical examination for his wife. Through the course of booking and then obtaining his wife’s medical exam certificate he was overwhelmed and stressed which led to him overlook the need to provide the completion certificate.

19. As such the applicant appealed and submitted the completion certificate to the Tribunal. I am satisfied that the certificate is genuine. The certificate states that the applicant completed his course requirements on 17 September 2018.

20. The applicant applied for the s.c.485 visa on 20 September 2018. This is within six months of the date of completion.

21. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

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

23. 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.

24. In relation to the secondary applicant the appropriate action is also to remit the application for reconsideration in light of the finding that the first named applicant now satisfied cl.485.231.

    DECISION

25. 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.

    Denis Dragovic
    Senior Member