Maharjan (Migration)

[2020] AATA 5539

Maharjan (Migration) [2020] AATA 5539 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Benjamin Maharjan

CASE NUMBER:  1821349

HOME AFFAIRS REFERENCE(S):          BCC2018/2564977

MEMBER:R. Skaros

DATE:12 November 2020

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 12 November 2020 at 8:57am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – 6 months immediately before the visa application – studies completed after supplementary exam – erroneous notification by education provider corrected – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26; 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 13 July 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 9 July 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 evidence did not demonstrate that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application.

4. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the 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, 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 Bachelor of Professional Accounting 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 Holmes Institute which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offers courses at degree level and above, and is therefore 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. ‘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: LIN 19/085.

15. The applicant in this case completed a Bachelor of Professional Accounting at Holmes Institute. The applicant provided the Department a letter of completion and academic transcript showing a completion date of 6 November 2017. The delegate noted that this suggested the course was completed more than 6 months before the date on which the application was made and found the applicant did not satisfy cl. 485.231.

16. The Tribunal has had regard to information on the Department's file and the evidence provided to the Tribunal. The applicant submitted that Holmes Institute erroneously issued a letter which incorrectly identified his course completion date as 6 November 2017. He noted that he had failed one subject, had to sit a supplementary exam and as such completed the course on 20 March 2018.

17. The applicant’s submission was supported by a letter from Holmes Institute and a copy of his academic transcript, both dated 16 July 2018, which confirmed that he commenced a Bachelor of Professional Accounting on 10 November 2014, he completed the course on 20 March 2018, and that all instruction was in English. This information has been verified by the Tribunal.

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

    ·the applicant’s Bachelor of Professional Accounting (a degree within the meaning of r.2.26AC(6)), was completed in the 6 months immediately before the application was made;

    ·the applicant’s Bachelor of Professional Accounting degree 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;

    ·all instruction was in English; and

    ·the applicant held a subclass 573 visa and then subclass 500 visas authorising him to study in Australia.

19. 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.

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

21. 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

22. 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.

    R. Skaros
    

    Senior Member