KOLLURU (Migration)

[2019] AATA 1327

KOLLURU (Migration) [2019] AATA 1327 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Srinivas KOLLURU
Mrs Padmaja KOLLURU
Ms Sai Shruti Ananya KOLLURU
Mr Sai Gautam KOLLURU

CASE NUMBER:  1802223

HOME AFFAIRS REFERENCE(S):           BCC2017/3635384

MEMBER:Karen McNamara

DATE:18 April 2019

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 18 April 2019 at 3:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Doctor of Philosophy – course completion date – date of final acceptance of thesis – 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 12 January 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 October 2017. 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 visas because the first named applicant Dr Srinivas Kolluru (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied 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. The applicants appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kamalapathi Sarma Nimmagada.  

5. The applicants were represented in relation to the review by their registered migration agent via telephone.

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 Doctor of Philosophy from Macquarie University 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 Macquarie University 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. At the hearing, the applicant told the Tribunal that the University had not taken into consideration further actions required by the applicant to finalise his thesis, when they issued a course completion letter on 22 November 2017.

16. The Tribunal heard evidence from Mr Kamalapathi Sarma Nimmagada, who supported the applicant’s claim that further actions were required prior to final completion of a Doctor of Philosophy.  At the hearing Mr Kamalapathi Sarma Nimmagada provided to the Tribunal a written submission detailing his knowledge of the applicant and his involvement in assisting the applicant to resolve this matter.

17. The Tribunal asked the applicant if he had evidence of the further actions he was required to undertake and information to support his claim as to the correct date of completion. The applicant told the Tribunal that he did not.  The Tribunal provided the applicant the opportunity to seek confirmation from the University as to his claims.

18. On 17 April 2019, the Tribunal received a letter of completion from Macquarie University dated 15 April 2019 which provided the following information:

    “ I wish to confirm you [sic]  that the course completion date will be the date of final acceptance of your thesis on 10 April 2017.”

    The letter lists the final acceptance of the applicant’s thesis as the 10 April 2017.

19. In consideration of the new evidence received, the Tribunal is satisfied that the applicant completed his Doctor of Philosophy on 10 April 2017 and lodged his visa application on 5 October 2017, which was in the 6 months immediately before the application was made.

20. 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.

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

22. 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.

23. Mrs Padmaja Kolluru, Mr Sai Gautam Kolluru and Ms Sai Shruti Ananya Kolluru, applied on the basis of being a member of the family unit of the first named applicant, Dr Srinivas Kolluru. The applications by Mrs Padmaja Kolluru, Mr Sai Gautam Kolluru and Ms Sai Shruti Ananya Kolluru will be determined by reference to the outcome of Dr Srinivas Kolluru’s application on remittal to the Department for consideration.

    DECISION

24. The Tribunal remits the applications for a Skilled (Provisional) (Class VC) visa 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.

    Karen McNamara
    Member