Mishra (Migration)

[2021] AATA 1165

Mishra (Migration) [2021] AATA 1165 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hardik Dharmanand Mishra

CASE NUMBER:  1817534

HOME AFFAIRS REFERENCE(S):          BCC2018/1208562

MEMBER:R. Skaros

DATE:19 February 2021

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 19 February 2021 at 8:52am.

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – Australian study requirements met – qualification is a registered course – completed the course in the 6 months immediately before the day the visa application was made – 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 12 June 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 14 March 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 was not satisfied the evidence demonstrated that 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 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 Master of International Business 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 Monash 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.

11. Accordingly, cl.485.231(2) is met.

    Does the applicant 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. In this case, the letter of completion the applicant provided the Department stated that he completed his course on 21 March 2018, after the application was made. Therefore, the delegate found that the applicant’s Master of International Business could not be used to satisfy the study requirement and was not satisfied that he met the requirements of cl. 485.231(1).

16. On 16 July 2018 the applicant provided evidence to the Tribunal to demonstrate he satisfied the relevant criteria. He provided letter from Monash University dated 10 July 2018 stating that he ‘completed’ all academic requirements for the final subject on 19 February 2018. The scheduled release dates for the exams was 26 February 2018, but they were not published on that date as expected. The applicant was advised that he passed the unit and had satisfied all academic requirements on 13 March 2018. His results were uploaded on the system on 15 March 2018 and processed in the student management system on 21 March 2018. The later date was the one reflected in the letter provided to the Department.

17. In this case, the letter provided by Monash University indicates that the applicant was found to have met the academic requirements of his course on 13 March 2018. The Tribunal finds that the applicant completed the course on that date, and that he completed the course in the 6 months immediately before the day the visa application was made.

18. Further evidence before the Tribunal confirms that the course was registered on CRICOS as requiring 104 academic weeks of study, the applicant completed it over a period of 24 calendar months and it was conducted in English. The course was conducted in Australia and the applicant held a Subclass 573 permitting him to undertake the relevant study during this period.

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

    ·the applicant's course, 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 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 (as per CRICOS registration);

    ·all instruction was in English; and

    ·the applicant held a subclass 573 visa authorising study in Australia.

20. 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.

21. 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.