Khadgi (Migration)

[2024] AATA 506

Khadgi (Migration) [2024] AATA 506 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sulav Khadgi
Mrs Anuka Dahal

CASE NUMBER:  2119762

HOME AFFAIRS REFERENCE(S):          BCC2021/344148

MEMBER:R. Skaros

DATE:6 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 06 March 2024 at 10:55am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – specified qualification – studies completed in an academic year – study duration of at least 92 weeks – decision under review remitted          

LEGISLATION

Education Services for Overseas Students Act 2000, ss 9, 14
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15, 2.26

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 10 December 2021 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 March 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 visas because the first named applicant (the applicant) did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualification relied upon by the applicant to satisfy the Australian study requirement was completed as a result of a total of at least 2 academic years.

4. On review, the applicant provided a letter of completion from his education provider, an academic transcript and the Confirmation of Enrollment (CoE). Having regard to the additional information, the Tribunal did not consider a hearing to be necessary in this case as it was able to find in favour of the applicant on the evidence and material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

7. 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 of Accounting degree which is a qualification specified in that instrument. Therefore, the applicant satisfies cl 485.231(1).

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

8. 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 LIN 23/021.  

9. In this case, the applicant’s qualification was conferred or awarded by Federation University Australia which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) by s 14A of the ESOS Act 2000 and offers courses at degree level and above. As the Federation University Australia is an educational institution specified in the relevant instrument, the applicant satisfies cl 485.231(2).

   Does the applicant meet the Australian study requirement?

10. 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.

11. 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.

12. ‘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(ESOS Act): LIN 19/085.

13. The applicant in this case completed a Master of Professional Accounting at Federation University Australia between March 2019 and November 2019. The applicant provided the Department with a copy of his academic transcript and letter of completion; however, the delegate was not satisfied the course was a minimum of 2 academic years. In relying on IMMI 09/040 the delegate considered 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 2000. The delegate found that the duration of the applicant’s course was registered for 78 weeks which is less than the required period of 92 weeks.

14. As noted above, the correct instrument is LIN 19/085. This Instrument came into effect on 3 April 2019 and repealed IMMI 09/040. As one academic year is defined in LIN 19/085 as being at least a total of 46 weeks, it follows that two academic years is at least a total of 92 weeks. The letter from the Registrar of the Federation University Australia indicates that the applicant completed the Master of Professional Accounting (by coursework) which has a CRICOS duration of four academic terms. The CRICOS Code indicated for the course is [085211G]. A check of the CRICOS Register confirms that the Master of Professional Accounting (by coursework) has a duration of 104 weeks. This exceeds the required period of a total of at least 2 academic years.

15. The completion letter indicates that the applicant commenced the course on 18 March 2019 and completed the requirements for the award on 16 November 2020. The applicant has therefore completed the course in 20 calendar months. The letter also indicates that the course was delivered in English. Other evidence before the Tribunal indicates that the course was conducted in Australia and the applicant held a visa permitting the relevant study during this period.

16. In relation to the various components of the Australian study requirement, the Tribunal is satisfied on the evidence before it that:

    ·the applicant's Master of Professional Accounting is a degree within the meaning of r.2.26AC(6) and was completed in the 6 months immediately before the application was made;

    ·the course was a CRICOS registered course;

    ·the course was completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the course was conducted in Australia while the applicant held visas authorising study in Australia.

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

18. 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 visas.

    DECISION

19. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl 485.231 of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member