Kalakuntla (Migration)

[2022] AATA 4907

Kalakuntla (Migration) [2022] AATA 4907 (9 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Krishna Rao Kalakuntla

REPRESENTATIVE:  Mr Sunny P Chandra (MARN: 0959742)

CASE NUMBER:  1935388

HOME AFFAIRS REFERENCE(S):          BCC2019/4614584

MEMBER:Ian Berry

DATE:9 December 2022

PLACE OF DECISION:  Brisbane

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 09 December 2022 at 3:00pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant’s study satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.231

CASES
Ali v MICMSMA [2021] FCA 1311

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 6 December 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 September 2019. 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 (Cth) (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 information available to the delegate and the applicant’s course was completed on 17 September 2019 which was not within the 6 month period..

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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 which is a qualification specified in that instrument.

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

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

10. 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 14/010.

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

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

    Does the applicant meet the Australian study requirement?

13. 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.

14. Under reg 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 because 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.

15. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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: LIN 19/085.

16. In satisfying the Australian study requirement the following criteria is established by the evidence presented to the Tribunal:

    ·The Master of Information Technology Is a CRICOS[1] registered course[2],

    ·The 2812CT Master of Information Technology (Computer Networking) at assigned to it 104 academic weeks of study.

    ·The applicant completed the studies in a total of at least 16 coming months.

    ·The applicant held a TU-500 visa allowing him to study.

    [1] Acronym for 'Commonwealth Register of Institutions and Courses for Overseas Students

    [2] Reg 1.03 of the Migration Regulations.

17. The applicant completed his degree, (as defined: see reg 2.26AC(6)) in the 6 months immediately before the application was made, the Tribunal having been satisfied of the following:

    ·The applicant made his VC-485 application on 15 September 2019.

    ·The period in which the applicant must complete his qualification’s registered course is 14 March 2019 to 14 September 2019.

    ·The applicant completed his qualification (Master of Information Technology (Computer Networking) Completing All Classes and Exams As at 16 August 2019.  The Letter of 3 October 2019 from the Charles Sturt University confirms the completion date as being 16 August 2019.

18. Reg 1.15F(2) states:

    In this regulation:

    completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

    Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification.  Therefore, a person can complete a degree, diploma or trade qualification, for subregulation(2), before the award is formally conferred.

19. In Ali vs Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021 FCA 1311 the decision of McKerracher J decided differently.  The facts of that case are:

    ·On 22 February 2018, Mr Ali undertook and completed his supplementary examination of his final unit of his degree.

    ·On 22 February 2018, Mr Ali’s lecturer said to him that he had passed the supplementary exam.

    ·Mr Ali’s pass Mark was published very early on the morning of 27 February 2018.  At 1:09 AM on 28 February 2018, Mr Ali completed and lodged his VC-485 visa application with the Department.

    ·On 23 March 2018, the delegate refused the visa application because ‘completion’ was not within the 6 monthly period of 27 August 2017 to 27 February 2018.

    ·Similarly, the Tribunal affirmed the delegate’s decision for the same reasons.

20. In summary, McKerracher J noted the decisions in Venkatesan, Sapkota and Llanos[3] and noted the ways in which a course could be completed either when the applicant has practically completed all the subjects and has passed, when the University releases the results or when the board of examiners have decided that the applicant has officially passed the subjects in the course leading to the qualification.

    [3] Venkatesan vs Minister for Immigration [2008] FMCA 409; (2008) 216 FLR 356; Sapkota vs Minister for Immigration and Citizenship [2012] FCA 981 and Llanos vs Minister for Immigration and Border Protection [2008] FCCA 2148.

21. At [39], McKerracher J summarises the case for Mr Ali:

    ‘It is important to understand that the essence of Mr Ali’s case is that the date of completion is not what the University considers it should be.  Rather, it is what Parliament says it is.  This is the central point on which I agree and, in respect of which, the appeal should be upheld.  It is entirely appropriate for the University to be of the view for its purposes that completion does not take place until there has been ratification by the board of examiners, although there is no evidence as to what that ratification involved.  Whatever the University is entirely justifiable view might be as to the formal date of completion, it is the statute and the regulations which are to prevail for the purposes of this case in prescribing the point in an applicant’s progression through their studies, and the University’s assessment of that progress, at which completion occurs.  Completion, for the purposes of reg 1.15F, is expressly directed to the satisfaction of the academic requirements of a course.

22. At [46], McKerracher J then says:

    ‘In my view, the correct formulation of ‘completion’ is that expounded by Burchardt FM in Venkatesan at [15] and [17] which warrant repeating here, paying particular attention to his honours use of the words ‘results’ and ‘credits’:

    15.     In my view, the proper meaning to be ascribed to the item is that you complete the academic requirements for a course when you achieve the necessary results or credits to enable you to be awarded the relevant degree or diploma.

    …

    17.     To adopt what I hope is a common sense approach, there was nothing more for the applicant to do of an academic nature after 2 August 2006.  What was required, admittedly, was certain steps, but they were purely administrative steps that did not require any form of academic effort by Mr Venkatesan nor any evaluation of any such effort by the University.’

23. At [47], McKerracher J made further clarifying comment

    ‘Mr Ali says the statutory criterion properly understood and applied to the evidence before the Tribunal resulted in the Tribunal and the primary judge wrongly deferring to the date identified by the University. Mr Ali’s argument is that the true time of completion under cl 485.231(3) is when the applicant has undertaken all study, coursework and exams etc necessary for the degree and that work has been assessed as satisfactory by the University. Assessment by the applicant’s immediate academic supervisor with respect to each unit of study is said to be sufficient, such that completion occurs when a student’s final unit of study is assessed as satisfactory by the relevant academic supervisor.’

24. The Tribunal accepts the principles and reasoning of the McKerracher J’s decision, finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

26. Based on 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

27. 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.

    Ian Berry
    Member