Kuriakose (Migration)

[2019] AATA 2322

Kuriakose (Migration) [2019] AATA 2322 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alex Kuriakose

CASE NUMBER:  1805309

HOME AFFAIRS REFERENCE(S):           BCC2018/338624

MEMBER:Mary Sheargold

DATE:22 March 2019

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 22 March 2019 at 3:08pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completion before visa application was made – course completion date – letter of completion – 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 15 February 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 20 January 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 letter of completion he provided to the Department indicated that he completed his Master of Science (Network Systems) at Swinburne University of Technology on 1 February 2018, which is after the date he applied for his Subclass 485 visa.

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

5. 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?

6. 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 Master of Science (Network Systems) degree: a Masters degree is a qualification specified in that instrument.

7. Accordingly, cl.485.231(1) is met.

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

8. 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 13/013.  The applicant’s qualification was conferred by Swinburne University of Technology, Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider code 00111D.

9. Accordingly, cl.485.231(2) is met.

   Does the applicant’s study for the specified qualification meet the Australian study requirement?

10. 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.

11. 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.

12. ‘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: IMMI 09/040.

    Did the applicant complete a degree, diploma or other trade qualification in the 6 months immediately before the application was made?

13. The applicant applied for the visa on 20 January 2018, and he later provided the Department with a letter of completion from Swinburne University of Technology indicating that he completed a Master of Science (Network Systems) degree on 1 February 2018. 

14. However, on 21 August 2018, the applicant’s agent provided the Tribunal with a letter of completion from Swinburne University of Technology in relation to the applicant’s Master of Science (Network Systems) degree dated 19 February 2018, indicating that the applicant completed the course on 7 December 2017.  Accordingly, the Tribunal finds that he completed a Master of Professional Engineering degree in the 6 months immediately before the visa application was made.

    Was the specified qualification as a result of a course that was a registered course: r.1.03

15. Registered course means a course of education or training provided by, relevantly, an institution registered under Division 3 of Part 2 of the ESOS Act to provide the course to overseas students.  The Tribunal is satisfied that Swinburne University of Technology is an institution suitably registered.

    Was the specified qualification as a result of at least 2 academic years of study?

16. The specified qualification, Master of Science (Network Systems), CRICOS course code 054543M is registered on CRICOS as a course of 104 weeks’ duration.  The applicant completed the course, which resulted in conferral of the qualification.

    Was the specified course completed in a total of at least 16 calendar months?

17. The applicant has provided the Department with his academic transcript from Swinburne University of Technology, indicating that he commenced studies in the second semester of 2015, and continued taking subjects each semester thereafter, with his last semester being the second semester of 2017.  The letter of completion from Swinburne University of Technology dated 19 February 2018 that is before the Tribunal indicates that the applicant completed the course on 7 December 2017.  Accordingly, the Tribunal is satisfied that he completed the specified course in a total of at least 16 calendar months.

    Was all instruction conducted in English?

18. The Tribunal is satisfied that all instruction was in English.

    Did the applicant hold a visa authorising study during the relevant period?

19. Departmental records indicate that the applicant was granted a Subclass 573 student visa on 11 March 2015, which expired on 30 August 2017.  On 28 August 2017, he was granted a Subclass 010 bridging visa, which does not contain any conditions restricting the applicant’s ability to study in Australia while holding that visa.  The Subclass 010 bridging visa expired on 20 October 2017, and the applicant was then granted a Subclass 500 student visa on 20 October 2017 that expired on 31 January 2018.  Based on this information, the Tribunal is satisfied that the applicant held a visa authorising study during the relevant period.

20. The Tribunal 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.

    DECISION

23. 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.

    Mary Sheargold
    Member