Mbaka (Migration)

[2020] AATA 2295

Mbaka (Migration) [2020] AATA 2295 (27 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Hauwa Mbaka

CASE NUMBER:  1917615

HOME AFFAIRS REFERENCE(S):          BCC2019/1164953

MEMBER:  Kira Raif

DATE:  27 May 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(3) of Schedule 2 to the Regulations

Statement made on 27 May 2020 at 12:20pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – 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 19 June 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 7 March 2019. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant completed her study in the 6 months before the application was made. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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.

6. 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.

7. ‘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.

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

1. The applicant stated on the application form that she completed a Master of Psychotherapy and Counselling at Western Sydney University. The delegate requested the applicant to provide evidence of course completion but the applicant had not done so.

2. The applicant provided to the Tribunal additional evidence, which includes a letter of completion from the Western Sydney University. It indicates that the applicant undertook the course between February 2017 and December 2018 and that she was enrolled until 23 December 2018 and met course requirements on 23 February 2019. As the application for the visa was made in March 2019, the Tribunal is satisfied the applicant completed a degree in the 6 months immediately before the application was made.

3. The Tribunal is satisfied the Masters course was a registered course. It was completed between 2017 and December 2018 and as a result of at least 16 months and 2 academic years of study. The Tribunal is satisfied that the instruction was conducted in English and that the applicant held a visa authorising her to study. 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. Accordingly, cl.485.231(3) is met.

   Conclusion

4. 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

5. 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.

   Kira Raif

   Senior Member

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