Maharjan (Migration)

[2022] AATA 2337

Maharjan (Migration) [2022] AATA 2337 (13 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sanish Maharjan
Mrs Manisha Biswokarma

CASE NUMBER:  2111321

HOME AFFAIRS REFERENCE(S):          BCC2020/2327013

MEMBER:R. Skaros

DATE:13 May 2022

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 13 May 2022 at 6:36pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application – applicant ‘completed’ the course within the meaning of r.1.15F within that period – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 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 25 August 2021 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 September 2020. 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 (Cth) (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 was not satisfied the evidence demonstrated that the first named applicant (the applicant)’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application as required by cl.485.231.

4. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on 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 Master of Technology (Software Engineering) from Federation University 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?

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 13/031.

9. In this case, the applicant’s qualification was conferred or awarded by Federation University which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offers courses at degree level and above, and which is therefore an educational institution specified in that instrument. Accordingly, cl 485.231(2) is met.

   Does the applicant 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 reg 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. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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.  

13. In the present case, the applicant provided the following documents for the course to the Department: an Australian Higher Education Graduation Statement from Federation University dated 17 July 2020, which certifies that the applicant was awarded a Master of Technology (Software Engineering).  Part 4 of this statement is the graduate’s academic achievements (academic transcript) for the Master of Technology (Software Engineering), awarded on 6 July 2020. The academic transcript indicates that the applicant was given credit transfer for one subject and that he completed subjects in Semester 1 2018, Semester 1 and Semester 2 in 2019 and Semester 1 in 2020; and a certificate of award which certifies that the applicant was granted the Master of Technology (Software Engineering) by Federation University on 6 July 2020. The delegate found that the educational documents provided by the applicant only showed the award date, not the course completion date. The delegate was therefore was not satisfied the Master of Technology (Software Engineering) qualification meets cl. 485.231 as the applicant has not provided sufficient evidence that the course was completed in the 6 months ending immediately before the day the application was made.

14. On review the applicant provided a letter from Federation University dated 8 July 2020. This letter advises the applicant that he has ‘successfully completed and passed all the requirements for this program’. The letter provides further details about the Master of Technology (Software Engineering) program, including: the official CRICOS duration of the program is 4 academic terms, the commencement date of study was on 16 July 2018 and completion date of the study was 6 July 2020.

15. On 9 March 2022, the Tribunal wrote to Federation University seeking confirmation on the applicant’s course completion date. In its responses, on 1 April 2022 and 14 April 2022, Federation University provided to the Tribunal the same completion letter of 8 July 2020 as referred to above and confirms that the dates in the completion letter ‘are true and correct’. In light of this evidence, having also regard to the academic transcript and the certificate of award, overall, the Tribunal is satisfied that the applicant completed his course on 6 July 2020, which is within the six months immediately before the visa application was made.

16. Evidence before the Tribunal confirms that the course was registered on CRICOS as requiring 104 weeks academic weeks of study, the applicant completed it over a period of at least 16 calendar months and it was conducted in English, after having been given credit transfer for one subject. The course was conducted in Australia while the applicant held a Subclass 500 visa, permitting him to undertake the relevant study during this period.

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

    ·the applicant’s Master of Technology (Software Engineering), a degree within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·the course was a registered course;

    ·the course was completed in a total of at least 16 calendar months and as a result of at least 2 academic years study;

    ·all instruction was conducted in English; and

    ·the course was conducted in Australia while the applicant held a visa authorising study in Australia.

18. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, cl 485.231(3) is met.

19. 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

20. 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.

    R. Skaros

    Senior Member