Irfan (Migration)

[2020] AATA 916

Irfan (Migration) [2020] AATA 916 (26 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ehtisham Irfan

CASE NUMBER:  1834713

HOME AFFAIRS REFERENCE(S):          BCC2018/3505374

MEMBER:Roslyn Smidt

DATE:26 March 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 26 March 2020 at 11:03am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – two years of academic study – course completed in less time by being granted credit points from  other study – course completion letter dated after date of application, but final results published and academic transcript dated before – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

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

CASE
Riaz v MIBP [2013] FCCA 2244

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 9 November 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 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 visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because it appeared that the applicant had not completed his course until after his visa application was lodged.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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 Information and Communications Technology (Advanced) which is a qualification specified in that instrument.

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

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

8. 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 IMMI13/031.

9. In this case, the applicant’s qualification was conferred or awarded by Western Sydney University (WSU) which is an educational institution specified in that instrument.

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

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

11. 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.

12. 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.

13. ‘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.LIN19/85

14. The applicant has provided evidence that he was enrolled for a Masters of Information and Communications Technology (Advanced) degree at WSU between 20 February 2017 and 1 July 2018, a period of 16 months, and that the course was conducted in the English language. A Masters of Information and Communications Technology (Advanced) degree is provided by an institution registered under Education Services for Overseas Students Act 2000, to provide the course to overseas students is therefore an appropriately registered course. Department records confirm that he held an appropriate student visa during that period.  The issues which remain to be determined are whether his degree was obtained as a result of at least two years academic study and whether he met the ‘Australian study requirement’ within six month immediately prior to lodging his application.

15. 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, regardless of whether completion of the course involved benefit from credits, recognition of prior learning or the like.

16. The Court's reasoning in Riaz v MIBP [2013] FCCA 2244 suggests that this will be the case even if the prior study was not undertaken in Australia. The Court held that 'study' in r.1.15(1)(c) denotes the activities educational institutions prescribe for the award of a degree, diploma or trade qualification and it is for those institutions to specify what is required for a person to complete a course that will result in the conferral of a relevant qualification, including the recognition of prior learning and course credits.

17. In the applicant’s case he completed a Masters of Information and Communications Technology (advanced) degree which is registered on the Commonwealth Register of Institutions for Courses for Overseas Studies (CRICOS) a course of 130 weeks duration. The applicant completed the course in less than half this time as a result of being granted credit points from other study.  As the duration of the course as registered on CRICOS exceeds 92 weeks and UWS is satisfied that the applicant has met the academic requirements for its award, r.1.15F(1)(c) is satisfied

18. With regard to the time at which the applicant met the ‘Australian study requirement’ , the course completion letter dated 18 September 2018 which the applicant provided with his initial application states that he had satisfactorily met all academic requirements on the 18 September 2018. However, the letter also states that the applicant’s final results were published on 4 September 2018.  In addition he provided an academic transcript dated 5 September 2018 which provides the scores he attained in all of the courses completed in order to obtain his degree.  It is clear from this that the applicant had completed his studies and his results had been evaluated prior to 14 September 2018 and that he therefore  met the study requirement prior to lodging his application.

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.

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

    CONCLUSION

21. 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

22. 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