Mannan (Migration)

[2021] AATA 3042

Mannan (Migration) [2021] AATA 3042 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Mannan

CASE NUMBER:  1913630

HOME AFFAIRS REFERENCE(S):          BCC2019/1311753

MEMBER:Mary Sheargold

DATE:2 August 2021

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(3) of Schedule 2 to the Regulations

Statement made on 02 August 2021 at 3:07pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – application lodged before completing the most recent qualification – multiple academic transcripts and completion letters – decision under review remitted      

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.231; rr 1.03, 1.15, 2.26

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 20 May 2019 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 14 March 2019. 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(3) of Schedule 2 to the Regulations because he lodged this application before completing his most recent qualification in Australia.

4. The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 the ‘Australian study requirement’.

   Does the applicant 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: LIN 19/085.

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

11. The applicant applied for the visa on 14 March 2019.  The applicant’s representative has provided the Tribunal with the following documents in support of the application:

    ·the applicant’s academic transcript and completion letter for his Master of Professional Accounting degree issued on 13 March 2019;

    ·the applicant’s academic transcript and completion letter for his Master of Professional Accounting degree issued on 8 January 2021;

    ·a letter issued by Holmes Institute, where the applicant completed his Master of Professional Accounting degree, dated 4 May 2021;

    ·email correspondence between the applicant and Holmes Institute dated 18 April 2021;

    ·evidence that the Holmes Institute student portal was last updated on 13 March 2019 in respect of the applicant’s Master of Professional Accounting degree; and

    ·evidence of academic records scanned and emailed to the applicant on 13 March 2019.

12. The delegate found that, based on the completion letter issued by Holmes Institute and dated 13 March 2019, the applicant did not complete his course until 14 March 2019, the same day he applied for the visa.  The Tribunal has reviewed this document alongside the revised academic transcript and completion letter issued by Holmes Institute on 8 January 2021, as well as the representative’s submissions, and finds that based on the evidence before the Tribunal at the time of its decision, the applicant completed his course on 13 March 2019, not 14 March 2019.  Therefore, he completed a degree in the 6 months immediately before the day the application was made.

    Was the applicant’s Master of Professional Accounting degree a registered course completed in a total of at least 16 calendar months as a result of at least 2 academic years for which all instruction was conducted in English whilst the applicant held a visa authorising study?

13. The applicant completed a Master of Professional Accounting at Holmes Institute Pty Ltd. Holmes Institute Pty Ltd is a training institution registered under Division 3, Part 2 of the Education Services for Overseas Students Act 2000 (Cth) and holds Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider code 02639M. The Master of Professional Accounting at Holmes Institute Pty Ltd is a registered course with the CRICOS course code 070528K. Therefore, the Tribunal is satisfied that applicant’s Master of Professional Accounting course was a registered course.

14. The applicant commenced the course on 10 July 2017 and completed the course on 13 March 2019.  The evidence before the Tribunal is that the applicant completed the course, that is, he met the academic requirements for the award of his degree, on 13 March 2019.  Therefore, the applicant completed the course over 19 months, which is in excess of the minimum 16 month requirement in r.1.15F(1)(b).  The CRICOS course details state that the course language is English.  The Tribunal notes that according to Departmental records, the applicant at all material times during his undertaking this course held a visa that authorised him to study. 

15. Therefore, based on all the evidence before it, 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.

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

17. 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

18. 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(3) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member