Katta (Migration)

[2024] AATA 2189

Katta (Migration) [2024] AATA 2189 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Uday Prakash Reddy Katta

REPRESENTATIVE:  Mr Narayan Prasad Humagain (MARN: 1802195)

CASE NUMBER:  2206015

HOME AFFAIRS REFERENCE(S):          BCC2021/53198

MEMBER:Alison Mercer

DATE:14 June 2024

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 485.231 of Schedule 2 to the Regulations.

Statement made on 14 June 2024 at 11:00am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Information Technology (Computer Networking/Network Security) – course completion date – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231

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 19 April 2022 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 13 April 2021. 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 the criteria in Subdivision 485.23.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations, which required that the applicant met the Australian study requirement (set out in r.1.15F) in the 6 months immediately before he made the visa application. The delegate found that the applicant had provided contradictory documentary evidence about the completion date of his Master of IT degree, and did not provide definitive proof that he had completed this qualification in the 6 months prior to making the visa application.

4. The Tribunal received a review application from the applicant on 22 April 2022. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Narayan Prasad Humagain, as his representative and authorised recipient for correspondence.

5. On 8 March 2024, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing by videoconference on 19 April 2024. They were invited to provide any additional material in support of the case prior to the hearing.

6. On 11 April 2024, the applicant and his agent provided a copy of a letter of completion issued by Charles Sturt University to the applicant on 18 January 2021, stating that the applicant completed all subjects for his course on 10 December 2020 and was assessed as having met all of the requirements for the award of his qualification of Masters degree of IT (Computer Networking/Network Security) on 15 January 2021. The applicant also provided a copy of his Confirmation of Enrolment for this course listing the course start and end dates as 25 February 2019 and 19 February 2021 respectively.

7. On 18 April 2024, the applicant and his agent provided a copy of the applicant’s degree certificate indicating that it was conferred on 15 January 2021, and a copy of his academic transcript. They also provided a written statement from the applicant dated 18 April 2024 in which he stated that it was an oversight that he did not provide the above documents to the Department before the primary decision was made.

8. The applicant appeared before the Tribunal on 19 April 2024 by videoconference to give evidence and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by videoconference, determining that it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, who was based in Western Australia, and the Presiding Member, who was based in the Tribunal’s Queensland registry. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. The applicant told the Tribunal that when making his visa application, he failed to differentiate between what he described as the course letter and the course completion letter, and that he uploaded the former, when what the Department needed was the latter. The applicant said that even though he was requested to upload his letter of completion after he had lodged the visa application, he again failed to appreciate which document he was supposed to upload and again uploaded the course letter, even though he had the letter of completion from his education provider at this time. He confirmed that the letter of completion he provided to the Tribunal issued to him on 18 January 2021 from Charles Sturt University stating that he completed all classes and exams for his Master of Information Technology (Computer Networking/Network Security) on 10 December 2020 and successfully passed all of the subjects for the award of the degree on 15 January 2021 was genuine.

11. In response to the Tribunal’s query, the applicant said that after completing his study, he had found employment as a production technician with a pharmaceutical company on a full-time casual basis.

12. Following the hearing, the review application was constituted to a new Tribunal Member as the original Tribunal Member became unavailable to finalise the review. A transcript of the hearing of 19 April 2024 was provided to the new Presiding Member.

13. On 13 June 2024, the Tribunal received confirmation from Charles Sturt University by email that it had issued the letter of completion dated 18 January 2021 to the applicant and that its contents were genuine and accurate.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

15. 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

    Does cl 485.231 apply to the applicant?

16. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

    Does the applicant hold a specified qualification?

17. Clause 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’s degree, which is a qualification specified in that instrument.

18. Therefore, the Tribunal finds that the applicant satisfies cl 485.231(1).

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

19. Clause 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.

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

21. Therefore, the Tribunal finds that the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

22. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

23. 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 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.

24. ‘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.

25. From the available evidence, including the letter of completion dated 18 January 2021, the Tribunal is satisfied that:

    ·the applicant has completed a Master of IT degree, which is a qualification listed in r.2.26AC(6);

    ·this qualification was obtained as a result of the applicant undertaking a registered tourse;

    ·The applicant completed the course in a total of at least 16 months, as a result of at least 2 years of academic study;

    ·the medium of instruction for the course was English; and

    ·The applicant undertook his course while holding a student visa authorising him to study in Australia.

26. The applicant has now provided verified evidence that he completed the above qualification (that is, he was assessed as having met all the requirements for its award) on 15 January 2021, in the 6 months immediately prior to making the subclass 485 visa application on 13 April 2021.

27. Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application and therefore cl 485.231(3) is met.

28. On the basis of the above findings, the Tribunal finds that the applicant meets cl 485.. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

29. 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.

    Alison Mercer
    Member