GODAVARTHI (Migration)

[2020] AATA 2600

GODAVARTHI (Migration) [2020] AATA 2600 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suryateja GODAVARTHI

CASE NUMBER:  1823512

HOME AFFAIRS REFERENCE(S):          BCC2018/2641621

MEMBER:Roslyn Smidt

DATE:15 April 2020

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 criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 15 April 2020 at 3:51pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – Australian study requirements met – qualification is a registered course – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, Schedule 2, cl 485.231
Education Services for Overseas Students Act 2000

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 31 July 2018 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 applied for the visa on 14 July 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 visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the evidence indicated that he had not completed his studies until after he applied for the visa and therefore did not meet cl 485.231.

4. The applicant was represented in relation to the review by his registered migration agent.

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 hold a specified qualification?

7. 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 IMMI 13/013. In this case, the applicant holds a Masters of Engineering (Extension) degree which is a qualification specified in that instrument.

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

   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 13/031.

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

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

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

12. 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.

13. 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.

14. ‘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:

15. The applicant has provided evidence that he was enrolled for a Masters of Engineering degree on 21 March 2016, that the course was lasted more than 16 months and that it was conducted in the English language. His degree was provided by an institution registered under Education Services for Overseas Students Act 2000, to provide that course to overseas students is therefore an appropriately registered course. Department records confirm that he held an appropriate student visa during that period. 

16. With regard to the two year requirement, regulation 1.15F(1)(c) specifies a course or courses that were completed as a result of at least 2 academic years study. The term 'academic year' is defined in r.1.03 to mean a period that is specified as an academic year in an instrument. The current and only instrument at the time of writing states that '2 academic years is at least a total of 92 weeks, being the duration of a course or courses registered under s 9 of the ESOS Act. For the purposes of this definition, as long as a course is registered under the ESOS Act as having duration of 92 weeks, and an applicant has 'completed' that course (i.e. met the academic requirements for its award), r.1.15F(1)(c) will be satisfied. In the degree completed by the applicant’s is registered as having a duration of 104 weeks and clearly meets  r.1.15F(1)(c)

17. With regard to the time at which the applicant met the ‘Australian study requirement’, in support of his initial application the applicant provided a letter from UTS dated 21 March 2016 which stated that the official release date for the applicant’s results was 16 July 2018, two days after he applied for the visa. In the absence of any other evidence regarding the completion date of his course the delegate found that the applicant had not met the Australia Study requirement in the six months prior to lodging his application.

18. On 14 April 2020 the applicant provided several documents including a letter from UTS dated 10 August 2018 which states that the applicant had meet all of the requirements of his course 12 July 2018. The Tribunal confirmed this information with UTS.

19. 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.

    CONCLUSION

20. 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

21. 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.

    Roslyn Smidt
    Member