Oza (Migration)

[2021] AATA 3153

Oza (Migration) [2021] AATA 3153 (18 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Sharad Oza

CASE NUMBER:  1909279

HOME AFFAIRS REFERENCE(S):          BCC2018/5805246

MEMBER:Mary Sheargold

DATE:18 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 18 August 2021 at 5:43pm

CATCHWORDS
MIGRATION – Skilled Provisional (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – course completed within six months before application made – completion letter dated after application made – supplementary exam with verbal notification of pass and completion of course – original letter stated later date administrative processes completed – later letter confirms earlier date of meeting academic requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F(1), 2.26AC(6), Schedule 2, cl 485.231(3)

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 8 April 2019 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 24 December 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 (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 he did not demonstrate that he had completed his degree prior to making his visa application.

4. The applicant appeared before the Tribunal by telephone on 5 August 2021 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

   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 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.

10. ‘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 (Cth): LIN 19/085.

11. Information provided by the applicant to the Tribunal demonstrates the applicant undertook a Master of Business Analytics degree at La Trobe University from 27 February 2017 to 18 December 2018: this constitutes a ‘degree’ as defined in r.2.26AC(6).

12. The Tribunal is satisfied that the Master of Business Analytics is a registered course, being a course of education provided by institutions that are registered under Division 3, Part 2 of the Education Services for Overseas Students Act 2000 (Cth) to provide the course to overseas students. Therefore, r.1.15F(1)(a) is met.

13. Paragraph 1.15F(1)(b) of the Regulations requires that the course to be relied upon to satisfy the Australian study requirement was completed in a total of at least 16 calendar months.  The applicant studied for his degree for 22 calendar months.  Therefore, the course was completed in a total of at least 16 calendar months, and the requirement in r.1.15F(1)(b) is met. 

14. The evidence before the Tribunal is that the course length was 104 weeks, and therefore at least 2 academic years of study, and that the course language was English.  Accordingly, the Tribunal is satisfied that the applicant meets the requirements in rr.1.15F(1)(c) and (d).

15. Based on Departmental records, the Tribunal is satisfied that the applicant was the holder of a student visa until the completion of his studies and therefore was the holder of a visa authorising him to study whilst undertaking his qualification.  Therefore, r.1.15F(1)(e) is met.

16. Therefore, the applicant’s study for his Master of Business Analytics degree satisfies the Australian study requirement.  The Tribunal must now turn its mind to whether this occurred in the 6 months immediately before the date of the visa application.

17. The applicant applied for the visa on 24 December 2018.  The completion letter dated 8 February 2019 provided to the applicant by La Trobe University at the time the application was made stated that the applicant’s course completion date was 21 January 2019.  Given 24 December 2018 pre-dates 21 January 2019, the delegate found the applicant could not rely on his studies for his Master of Business Analytics degree to meet the Australian study requirement in the 6 months immediately before the date of his application.

18. At review, the applicant argued that he had sat a supplementary examination for one subject in December 2018 and had been advised by his professor on 18 December 2018 that he had passed that examination, and therefore he had met the course requirements as at that date.  The Tribunal requested a formal letter from La Trobe University confirming that the applicant completed his course requirements prior to 24 December 2018.  The applicant has provided a letter from La Trobe University, dated 13 August 2021, confirming that the applicant met all the requirements for the award of his Master of Business Analytics degree on 18 December 2018, and that the 21 January 2019 completion date previously advised was the result of an internal process to update his course stated to “Passed” on that date. 

19. The Tribunal accepts that, as a general rule, the date an institution finalises results is generally upon the meeting of the institution’s academic board or its equivalent, and that this date often post-dates the date the applicant received advice regarding their final results.  However, the Tribunal finds it is open to it to make a finding of fact in this particular instance that the applicant’s completion date as set out in the letter dated 8 February 2019 is not the date on which he met the academic requirements for completion of the course.  Specifically, the Tribunal finds that the applicant met the academic requirements for the award of his Master of Business Analytics degree on 18 December 2018, and makes this finding on the basis of the express statement of this fact in the letter from the university provided to the applicant dated 13 August 2021.

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(3) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member