Patel (Migration)

Patel (Migration) [2019] AATA 3625 (4 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Niyatiben Mehul Patel
Mr Mehul Vishnubhai Patel
CASE NUMBER:  1836970
HOME AFFAIRS REFERENCE(S):           BCC2018/4567077
MEMBER:Jennifer Cripps Watts
DATE:4 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:
·cl.485.231 of Schedule 2 to the Regulations
Statement made on 04 July 2019 at 5:32pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant holds a specified qualification – a specified educational institution – Australian study requirements met – qualification is a registered course– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03,1.15F(1), Schedule 2, cl 485.231
Education Services for Overseas Students Act 2000, s 9

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 13 December 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 October 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
The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed her academic qualification in the 6 months before the day the visa application was made.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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 which specifies for the purpose of cl.485.231(1), relevantly, a masters by coursework degree. In this case, the applicant holds a Master of Professional Accounting which is a qualification specified in that instrument.
Accordingly, cl.485.231(1) is met.
Was the applicant’s qualification conferred or awarded by a specified educational institution?
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 13/031.
There is evidence before the Tribunal that indicates the applicant’s Master of Professional Accounting was conferred or awarded by Torrens University Australia (Torrens). The Tribunal has had regard to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and is satisfied that Torrens (provider number 03389E) offers courses at degree level and above, and is an educational institution specified in IMMI 13/031.
Accordingly, cl.485.231(2) is met.
Does the applicant’s study for the specified qualification meet the Australian study requirement?
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.
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.
‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000: IMMI 09/040 that specifies 2 academic years to be at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (ESOS).
It is noted in the delegate’s decision that a letter of completion for the Master of Professional Accounting indicated that the applicant completed course requirements on 31 October 2018, referring to a letter issued by Torrens on 9 November 2018 which gave that date. The visa application was made on 18 October 2018, before the completion date, and, justifiably in the Tribunal’s view, the delegate refused the visa on the basis that the applicant had not completed course requirements in the 6 months before she made the visa application.
The applicant applied for review and provided the Tribunal with two more letters from Torrens:
a.One from Greg Harper, Pro-Vice-Chancellor, Business and Entrepreneurship, dated 18 December 2018. He confirms that the applicant commenced the course on 18 July 2016, completed it on 26 August 2018 and that course requirements were met on 20 September 2018; and
b.One from Rebecca Bray, Laureate Student Progression and Awards Manager, also dated 18 December 2018. She confirms that the applicant commenced the course on 18 July 2016 and completed it on 26 August 2018.
It is not clear why two people from Torrens issued their letters relating to the applicant on the same day or, for that matter, why three different people over a period of a few months have all issued letters relating to the date of completion, giving different dates.
While the Tribunal is not wholly convinced of the reliability of the evidence relating to the applicant’s completion date, due to the high degree of confusion surrounding it that has been displayed in letters issued by Torrens that have been provided to the Department and the Tribunal, it feels bound to accept the last word on the matter, that is, information contained in an email received from Donna McClean, Records and Results Coordinator.
Ms McClean, in response to the Tribunal’s request for verification of the letters dated 18 December 2018, made on 18 June 2019, responded, by email dated 20 June 2019, that the applicant met the course requirements for the Master of Professional Accounting (Advanced) on 20 September 2018. She says that ‘the reason for the error was a typo error’ and confirms the letters are both ‘genuine’. The Tribunal’s view is that making further inquiries would not make the situation any clearer.
On the basis that the Tribunal accepts the information contained in Ms McClean’s email, the applicant has provided evidence that satisfies the Tribunal she completed the following qualification:
a.Master of Professional Accounting (Advanced), Torrens
·CRICOS code 090254K, 104 weeks’ duration
It has been confirmed by Torrens, in writing, that the course was full-time and conducted in English.
On the evidence, the Tribunal is satisfied that the qualification is a registered course, that was completed in a total of at least 16 calendar months, 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 him to study.
The course requirements for the Master of Professional Accounting were completed on 20 September 2019. The visa application was made on 18 October 2018. 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.
On the basis of the above findings, the Tribunal finds that the first named 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
The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:
·cl.485.231 of Schedule 2 to the Regulations
Jennifer Cripps Watts
Member

[2019] AATA 3625

4 July 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Remedies