Ginda (Migration)

[2019] AATA 4009

Ginda (Migration) [2019] AATA 4009 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paigham Ginda

CASE NUMBER:  1704581

HOME AFFAIRS REFERENCE(S):           BCC2016/4263047

MEMBER:Kira Raif

DATE:18 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

Statement made on 18 July 2019 at 12:49pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – study requirement – course completed within 6 months – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.221, r 1.15F

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 Immigration and Border Protection on 28 February 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in July 1987. He applied for the visa on 16 December 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant met the Australian study requirement in r. 1.15F. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal determined that it was able to make a favourable decision on the material before it.

   Relevant law

4. Visa Class VC contains Subclass 485. 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).

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 of Schedule 2 to the Regulations. It requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets this requirement.

6. 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; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·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.

7. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms. Clause 485.111 provides that degree has the same meaning as in subregulation 2.26AC(6).The term ‘degree’ is defined in r. 2.26AC(6) as follows:

   degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:
   (a)         the entry level to the course leading to the qualification is:

   (i)in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

   (ii)in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

   (iii)in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

   (iv)in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

   (b)in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

8. ‘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, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

   Does the applicant meet the Australian study requirement?

9. The applicant provided to the Tribunal a copy of the primary decision record. The applicant stated on the application form that he completed the following study in Australia.

   07/15 – 07/16             Graduate Diploma of Technology, Federation University

   03/10 – 07/14             Bachelor of IT, Deakin University

10. The delegate accepted that the latter qualification was completed within 6 months of the application being made but found that a Graduate Diploma is not an eligible qualification for the Graduate Work Stream. The delegate noted that the Bachelor degree was completed more than 6 months before the application was made, concluding that the applicant did not meet cl. 485.221.

11. The Tribunal finds that the application was made in December 2016 and the Bachelor was completed more than 6 months before the application was made. The applicant must therefore rely on the Graduate Diploma to meet the Australian study requirement. The Tribunal must consider whether the Graduate Diploma is an acceptable qualification for the purpose of r. 1.15F.

12. The Tribunal wrote to Federation University seeking further information about the course completed by the applicant. The University replied on 17 July 2019 and advised that the entry requirement for the Graduate Diploma was a bachelor degree in any field and applicants must provide evidence of successful completion of relevant higher education studies. It is stated that under the AQF, the course was a Level 8 course. The course was registered for 1.5 years and the language of instruction was English. It is stated that the applicant commenced the course in March 2015 and completed it on 8 July 2016.

13. Having regard to that advice, the Tribunal has formed the view that the Graduate Diploma meets the definition of paragraph (a)(iv) of the term ‘degree’ as set out above. In particular, the Tribunal finds that the Graduate Diploma of Technology was a formal educational qualification under the Australian Qualifications Framework, awarded by an Australian educational institution as a postgraduate diploma for which the entry requirement was the satisfactory completion of a bachelor’s degree.

14. The Tribunal finds that the applicant completed a degree or a Diploma in July 2016.  As the application was made in December 2016, the Tribunal finds that the applicant completed the degree in the 6 months immediately before the application was made.

15. The Tribunal is satisfied that the both the Bachelor and the Graduate Diploma were registered courses. The two courses were completed in a total of at least 16 calendar months and 2 academic years of study. The Tribunal is satisfied that the language of instructions was English and that the applicant had the visa authorising him to study. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

    Conclusion

16. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member