Navdeep Singh (Migration)

[2020] AATA 4110

Navdeep Singh (Migration) [2020] AATA 4110 (7 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navdeep Singh

CASE NUMBER:  1814735

HOME AFFAIRS REFERENCE(S):          BCC2018/1191046

MEMBER:R. Skaros

DATE:7 September 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 of Schedule 2 to the Regulations.

Statement made on 07 September 2020 at 4:04pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Post-Study Work stream – study requirements – concurrently undertook and completed the Master of Professional Accounting and Master of Business Administration – CRICOS registered course – period of 104 weeks – as a result of at least 2 academic years study – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, cl 485.231, r 1.15F(1)(c)

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 May 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 13 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 refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because they were not satisfied that the applicant’s courses were completed as a result of at least 2 academic years of study as required by r.1.15F(1)(c).

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. 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 those requirements.

   Does the applicant hold a specified qualification?

8. 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 Professional Accounting and a Master of Business Administration from Holmes Institute which are qualifications specified in that instrument.

9. Accordingly, cl.485.231(1) is met.

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

10. 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.

11. In this case, the applicant’s qualification was conferred or awarded by Holmes Institute which is registered on the Commonwealth Register of Institutions and Course for Overseas Students and offers course at a degree level and above. As such this is an educational institution specified in that instrument.

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

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

13. 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.

14. 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.

15. ‘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

16. In this case, the applicant completed his Master of Professional Accounting and Master of Business Administration at Holmes Institute between 11 July 2016 and 9 March 2018. As noted above the delegate concluded that these courses were not undertaken as a result of at least 2 years academic study as required by r.1.15F(1).

17. The Tribunal has had regard to information on the Department’s file and the evidence provided to the Tribunal. The applicant provided a letter of completion from Holmes Institute demonstrating he concurrently undertook and completed the Master of Professional Accounting and Master of Business Administration.

18. Additional information was provided to the Tribunal from Holmes Institute regarding the structure of the applicant’s courses. Relevantly, this stated that a student can complete 12 subjects in the Master of Professional Accounting (78 CRICOS weeks) and be awarded 8 credit exemptions to the Master of Business Administration. Four subjects must then be completed for the Master of Business Administration (26 CRICOS weeks). To be awarded both degrees a student has to complete a total of 104 CRICOS weeks in a time period of more than 16 calendar weeks.

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

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

    ·the applicant’s Master of Professional Accounting and Master of Business Administration were CRICOS registered courses and ran for a period of 104 weeks;

    ·the courses were 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 applicant held a subclass 573 visa authorising him to study in Australia.

20. Given the above, the Tribunal finds that the applicant’s study for the specified qualifications satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Accordingly, cl.485.231(3) is met.

21. 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

22. 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.

    R. Skaros

    Senior Member