LAMA (Migration)

[2019] AATA 3291

LAMA (Migration) [2019] AATA 3291 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BIJAY LAMA

CASE NUMBER:  1808616

HOME AFFAIRS REFERENCE(S):          BCC2018/838149 EGOHFXYJ9N

MEMBER:Denise Connolly

DATE:24 July 2019

PLACE OF DECISION:  Sydney

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 24 July 2019 at 5:01pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – study duration – Graduate Certificate in Business – Master of Professional Accounting – transferred to an Advanced Master course following the successful completion of the Masters course – public graduate roll – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 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 22 March 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 21 February 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. The delegate refused to grant the visa on the basis that the applicant did not satisfy this criterion.

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

4. 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?

5. 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 IMMI13/013. In this case, the applicant holds a Master degree by coursework which is a qualification specified in that instrument.  Accordingly, cl.485.231(1) is met.

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

6. 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 13/031.

7. In this case, the applicant’s qualification was conferred or awarded by the University of Wollongong. The Tribunal has had regard to the CRICOS records which confirm it is an specified educational institution. Accordingly, cl.485.231(2) is met.

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

8. 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.

9. 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.

10. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.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:

11. When making the visa application the applicant stated that he had completed a Graduate Certificate in Business at the University of Wollongong in the period August 2015 to November 2015 and a Master of Professional Accounting (Masters (by coursework) degree) at the University of Wollongong in the period February 2016 to November 2017. He provided a letter of completion dated 18 December 2017 from the University of Wollongong which stated that the applicant completed a Master of Professional Accounting.

12. The delegate found that the Graduate Certificate in Business was registered in CRICOS as a 13 week course and the Master of Professional Accounting was registered in CRICOS as being of 78 weeks’ duration. She found therefore that the applicant had only completed his courses as a result of a total of 91 weeks, which did not meet 2 academic years’ study.

13. When making his application for review, the applicant provided to the Tribunal a letter from the University of Wollongong dated 11 May 2018 stating that the applicant had in fact completed a Master of Professional Accounting Advanced, a CRICOS registered course which usually takes 2½ years of study to complete. The University advised that the applicant transferred to the Advanced Masters following the successful completion of all aspects of his Master of Professional Accounting. The University advised that the language of instruction was English. The university recorded that his date of completion was 29 November 2017.

14. The applicant provided to the Tribunal a copy of his transcript of academic record, recording that he commenced study in trimester 3, 2015 in the Graduate Certificate in Business and that he then completed the Master of Professional Accounting in trimesters 1, 2 and 3 in 2016 and 2017.

15. The applicant also provided to the Tribunal a statutory declaration in which he states that he studied at the University from August 2015 until he completed his Master of Professional Accounting Advanced on 29 November 2017.

16. The applicant’s migration agent also provided a written statement indicating that as the applicant had progressed in his Master of Professional Accounting he decided to transfer to the Master of Professional Accounting Advanced course which is of 104 weeks’ duration.

17. The Tribunal wrote to the University seeking to confirm the applicant’s advice. However the University refused to provide to the Tribunal the information sought, ‘due to Australian privacy laws’ and referred the Tribunal to the University’s online public graduate roll. The Tribunal has had regard to that public graduate roll which confirms that the applicant completed a Master of Professional Accounting Advanced and was awarded the degree in July 2018.

18. Having regard to the correspondence from the University of Wollongong and the public graduate roll, the Tribunal is satisfied the applicant completed a Master of Professional Accounting Advanced in the period February 2016 to November 2017. The Tribunal notes the CRICOS records confirm that this Masters course is registered and of 104 weeks’ duration.

19. Having considered the material before it the Tribunal is satisfied the Master of Professional Accounting Advanced is a specified qualification which was completed as the result of the applicant completing a registered course, in a total of at least 16 calendar months, as a result of at least 2 academic years’ study for which instruction was conducted in English.

20. The Tribunal notes the applicant’s movement records confirm that he held a student visa while undertaking the study.

21. The Tribunal finds therefore 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. 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.

    Denise Connolly
    Member