Khan (Migration)

[2018] AATA 4107

Khan (Migration) [2018] AATA 4107 (21 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr FARHAN KHAN

CASE NUMBER:  1617497

HOME AFFAIRS REFERENCE(S):           BCC2016/2740315

MEMBER:Amanda Mendes Da Costa

DATE:21 September 2018

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(1) of Schedule 2 to the Regulations

Statement made on 21 September 2018 at 3:36pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – applicant holds relevant qualification – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 7 October 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 18 August 2016. 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(1) of Schedule 2 to the Regulations.

4. The Tribunal has perused both the files of the Department and the Tribunal.  On consideration of the evidence before it, the Tribunal determined that a hearing was not required and that a decision on the review could be made on the basis of the documentation received.

5. The applicant was represented in relation to the review by his registered migration agent.

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(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The issue in the present case is whether the applicant meets that requirement.

   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 Information Technology conferred by Melbourne Polytechnic, which is a qualification specified in that instrument.

8. In her decision, the delegate stated:

   The Completion Letter for your Bachelor of Information Technology at Melbourne Polytechnic states that you commence your Bachelor of Information Technology on 23 February 2015 and completed your course on 4 July 2016. The completion letter provided also states the “course was successfully completed through a combination of Credit Transfer (CRT) and full-time study”. The academic transcript letter provided states that you were credited 13 Units out of the 23 Units required for the completion of your bachelor degree. Any recognised prior learning must have been undertaken at the AQF Level 7I or above and have contributed towards an eligible qualification whilst you hold an eligible qualification (Bachelor), you have received 13 credits from other study which contributed towards the completion of the eligible qualification

   According to the Australian qualifications framework (AQF) website, a Bachelor degree is that the AQF Level 7I and is acceptable. The Diploma is at the AQF Level 7 and therefore I cannot be satisfied that your recognised prior learning was undertaken at the AQF Level 7 and above the find that you are unable to satisfy paragraph 485.231 and are therefore unable to satisfy the requirements of regulation 485.231.

9. The Tribunal is satisfied that the qualifications specified in IMMI 13/103 include a Bachelor degree. The Tribunal finds that although some of units of study credited to the applicant’s Bachelor degree, may not have been studied at Australian Qualifications Framework (AQF) level 7, Melbourne Polytechnic has been satisfied that the applicant meets its requirements for a Bachelor of Information Technology. As the applicant holds a qualification specified in IMMI 13/013 for the purpose of cl.485.231(1), the Tribunal finds that it is not required to separate and individually evaluate the various units studied by the applicant and which contributed to his degree. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.485.231(1).

10. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231(1). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

11. 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(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member