Kafle (Migration)

[2017] AATA 1204

Kafle (Migration) [2017] AATA 1204 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kumar Kafle

CASE NUMBER:  1606758

DIBP REFERENCE(S):  BCC2016/1067576

MEMBER:Alison Mercer

DATE:18 July 2017

PLACE OF DECISION:  Melbourne

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.485.221; and

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 18 July 2017 at 9:58am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Accountant (General) – Course completed within 6 months of visa application date – Qualifications are closely related to the nominated occupation

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, Part 485, r 1.15F, cl 485.221, cl 485.222

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 on 3 May 2016 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 11 March 2016. Visa Class VC contains subclass 485. (For visa applications made before 1 July 2013, there is also a subclass 487; however, that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations. The delegate found that the applicant did not meet the requirement to have met the Australian study requirement in r.1.15F in the 6 month period ending immediately before the date on which the applicant made his visa application, as the letter of completion provided by the applicant from Holmes Institute indicated that he completed his Master of Professional Accounting and Master of Business Administration qualifications on 11 March 2016, the same date that he made his visa application.

4. The applicant lodged a review application with the Tribunal on 12 May 2016, which was accompanied by a copy of the delegate’s decision and 2 scanned letters:

   ·    letter of completion issued by Holmes Institute on 10 March 2017 giving the date of completion of the applicant’s courses as 10 March 2016; and

   ·    letter dated 11 May 2016 from the Registrar, Higher Education at Holmes Institute stating that the completion date for the applicant’s courses was 10 March 2016.

5. On 22 May 2017, the Tribunal wrote to the applicant via his registered migration agent to invite him to attend a hearing on 12 July 2017.

6. On 4 July 2017, The Tribunal wrote to the Registrar, Higher Education, at Holmes Institute, to verify that the letters provided by the applicant were genuine and issued by Holmes Institute, and to clarify whether the letter dated 11 May 2016 was issued on that date, or was in fact issued on 11 May 2017.

7. On 10 July 2017, the applicant uploaded duplicate copies of his letter dated 11 May 2016 and his academic transcript issued on 10 March 2017, stating that he completed his course on 10 March 2016.  He also provided a written statement dated 10 July 2017 in which he made the following points:

   ·Holmes Institute mistakenly printed the incorrect end date for his course on his original certificates and it had now reissued them with the correct end date (10 March 2016);

   ·he had therefore completed his course before the date on which he lodged his visa application (11 March 2016);

   ·he was a genuine student and had worked hard to obtain his qualification.  As soon as he received his certification from Holmes Institute, he lodged his visa application on Friday 11 March 2016, as his student visa was due to expire on 15 March 2016 and there was a long weekend meaning the Department would be closed on Monday 14 March 2016. He therefore preferred to lodge the visa application on 11 March 2016 and not leave it until the last day; and

   ·he very much appreciated the opportunities provided if granted a subclass 485 visa and asked the Tribunal not to penalise him for a technical mistake made by his education provider, which had now been rectified.  This was especially the case since he had not been given a chance to explain this to the Department before his visa was refused, and he met the other visa criteria (such as having undertaken the relevant police checks, English test, meeting the 2 year study requirement, having a skills assessment and having maintained health insurance cover).

8. The applicant appeared before the Tribunal on 12 July 2017 to give evidence and present arguments. He confirmed his written statements and told the Tribunal that he did not notice the original course completion date was wrong as he only received the letter of completion and transcript from Holmes Institute on Friday 11 March 2016 and then he had to apply for his Australian Federal Police check and skills assessment on the same date as well as make the visa application online.  He said that he was just relieved and pleased to have completed his Masters of Professional Accounting and Masters of Business Administration, and did not realise that there was a problem until his visa was refused.  When it was refused, he went back to Holmes Institute and told them what had happened and they reissued his documents with the correct course completion date (10 March 2016). 

9. The Tribunal advised the applicant that it had sought verification of the new Holmes Institute letter of completion and transcript giving his course completion date as 10 March 2016 with Holmes Institute directly, and if and when this was received, it would remit the matter back to the Department.  If it did not receive confirmation that the documents he provided had been genuinely issued by Holmes Institute, the Tribunal indicated that it would write to the applicant pursuant to s.359A of the Act to seek his comments on any adverse information before making its decision. 

10. On 17 July 2017, the Tribunal received a response to its request to Holmes Institute.  In the response, the General Manager confirmed that the letters issued to the applicant on 11 May 2016 and 10 March 2017 were genuinely issued by Holmes Institute, and that the completion date of the applicant’s courses was 10 March 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is seeking to satisfy the primary criteria for a subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

    Does the applicant meet the Australian study requirement?

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; 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.

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, ‘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 (IMMI 09/040).

15. The Tribunal finds that the applicant has provided evidence of having completed a Master of Professional Accounting and a Master of Business Administration, both at Holmes Institute, the completion date for both of which is given as 10 March 2016 (as confirmed independently by the Tribunal with the General Manager of Holmes Institute on 17 July 2017).  The Tribunal is satisfied that these courses are degrees as defined in r.2.26AC(6).  The Tribunal is satisfied, on the basis of the updated and independently verified information provided by Holmes Institute, that the applicant completed these courses on 10 March 2016, in the 6 month period ending immediately before he made his visa application on 11 March 2016.

16. The letter of completion issued to the applicant by Holmes Institute on 10 March 2017 and the letter from Holmes Institute dated 11 May 2016 indicate that:

    ·the courses commenced on 17 March 2014 and the applicant completed the requirements for the award of the qualifications on 10 March 2016 (and therefore ‘completed’ them, in accordance with r.1.15F(2)); and

    ·the courses were full time and conducted in English.

17. The Tribunal has consulted the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, and is satisfied that the above courses are registered courses within the meaning of r.1.03, that they were completed in approximately 24 calendar months and that each is listed on CRICOS of having a duration of 78 weeks (156 weeks in total).

18. Having reviewed the Department’s movement records, the Tribunal is satisfied that the applicant completed these courses while holding a student visa and bridging visa authorising him to study in Australia.

19. Given the above, 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.

    Is the qualification ‘closely related’ to the nominated occupation?

20. In addition, cl.485.221 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060.

21. In this case, the applicant nominated the occupation of Accountant (General) which is a skilled occupation specified in IMMI 16/060.

22. Having reviewed the subjects undertaken by the applicant for his Masters of Professional Accounting and Master of Business Administration degrees, the Tribunal is satisfied that his qualifications are closely related to the nominated skilled occupation, and it finds that the applicant meets cl.485.222.

23. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. 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.485.221

    ·cl.485.222 of Schedule 2 to the Regulations.

    Alison Mercer
    Member