KANAGALINGAM (Migration)

[2019] AATA 2298

KANAGALINGAM (Migration) [2019] AATA 2298 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaan KANAGALINGAM

CASE NUMBER:  1819008

HOME AFFAIRS REFERENCE(S):           BCC2018/1854261

MEMBER:Karen McNamara

DATE:7 June 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 criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 07 June 2019 at 10:37am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – Post-Study Work stream – applicant did not satisfy requirement – study requirement – letter of completion – authenticity of this document – specific qualification satisfied requirement – decision under review remitted

LEGISLATION

Education Services for Overseas Students Act 2000, s 9
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2 cl 485.231(3), rr 1.03, 1.15F(1)

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 14 June 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 27 April 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 delegate was not satisfied based on the information before them, that the Australian study requirement had been completed in the period of 6 months ending immediately before the day the visa application was made:cl.485.231(3).

4. On 3 July 2018 the applicant submitted to the Tribunal a letter of completion from The University of Sydney dated 19 June 2018. The details and authenticity of this document were confirmed to the Tribunal by the University of Sydney on 31 May 2019.

5. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.  The Tribunal has therefore made a decision on the papers before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 is IMMI 13/013. In this case, the applicant holds a Bachelor of Science degree from the University of Sydney 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 IMMI 13/031.

10. In this case, the applicant’s qualification was conferred or awarded by the University of 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. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). 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.

15. On 3 July 2018, the applicant submitted to the Tribunal a letter of completion from The University of Sydney dated 19 June 2018 which provides the following information;

    “ This is to confirm that Mr Shaan Kanagalingam, student number 460005379, ………., has completed the requirements for the degree of Bachelor of Science at the University of  Sydney as of 5 November 2017.  Mr Kanagalingam commenced this course on 29 February 2016.”

16. In consideration of the evidence received by the Tribunal, the Tribunal is satisfied that the applicant completed his Bachelor of Science degree on 5 November 2017 and lodged his visa application on 27 April 2018, which was in the 6 months immediately before the application was made.

17. The Tribunal therefore 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.

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

19. 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

20. 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.

    Karen McNamara
    Member