Mubashir (Migration)

[2023] AATA 219

Mubashir (Migration) [2023] AATA 219 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Mubashir

REPRESENTATIVE:  Mr Roy Chandra (MARN: 1465154)

CASE NUMBER:  2005061

HOME AFFAIRS REFERENCE(S):          BCC2019/4767482

MEMBER:Namoi Dougall

DATE:02 February 2023

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 02 February 2023 at 2:19pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – specified qualification – evidence of completion of course not provided to department – statement of completion provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), 2.26AC(6), 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 2 March 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 September 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 (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 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 that the applicant held a qualification of the kind specified by the Minister in the relevant legislative instrument as the applicant had not provided the Department with a letter of completion of his studies from the Universal Business School Sydney.

4. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

1. 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.

2. The applicant provided to the Tribunal a Statement of Completion from Universal Business School Sydney which stated that the applicant had completed a Bachelor of Accounting started on 16 January 2017 and finished on 3 May 2019. The Statement also indicated that the course was delivered in English on a full time basis.

3. On the above the Tribunal is satisfied that the applicant holds a Bachelor of Accounting which is a qualification specified in that instrument.

4. Accordingly, cl 485.231(1) is met.

Was the applicant’s qualification conferred or awarded by a specified educational institution?

1. 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 LIN 19/085.

2. In this case, the applicant’s qualification was conferred or awarded by the Universal Business School Sydney which is an educational institution that is registered on the Commonwealth Register of Institutions and Coursed for Overseas Students an offer courses are degree level and above Therefore, the University of Sydney is an educational institution specified in that instrument.

3. Accordingly, cl 485.231(2) is met.

Does the applicant meet the Australian study requirement?

1. 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.

2. 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.

3. ‘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.

4. Department records indicate that he applicant completed his Bachelor of Accounting while holding a Subclass 500 and a  573 or associated Bridging visas. The course was completed on 3 May 2019 and the Subclass 485 visa was lodged on 23 September 2019. Therefore, the Tribunal is satisfied that the applicant completed a degree within 6 months immediately before the application was made.

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

   ·The applicant's Master of Bachelor of Accounting is a Degree within the meaning of reg 2.26AC(6);

   ·the course was a registered course within the meaning of reg 1.03;

   ·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 course was conducted in Australia while the applicant held a visa authorising study in Australia. Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement within the relevant period

6. On the above, the Tribunal is satisfied that the requirements of reg 1.15F are met. Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement within the relevant period and that the requirements of cl.485.221 are met.

7. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. 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.

Namoi Dougall
Member