Penumathsa (Migration)

[2023] AATA 3127

Penumathsa (Migration) [2023] AATA 3127 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vishaal Raj Varma Penumathsa

CASE NUMBER:  2115211

HOME AFFAIRS REFERENCE(S):          BCC2020/1518060

MEMBER:Peter Katsambanis

DATE:15 September 2023

PLACE OF DECISION:  Perth

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 15 September 2023 at 2:27pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – qualification completed within 6 months before application made – academic transcript dated slightly more than 6 months before – administrative error by course provider – letter and updated transcript and graduation statement provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), 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 22 October 2021 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 9 May 2020. 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 met the Australian study requirement in subclause 485.231(3).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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 Technology (Enterprise Systems and Business Analytics) which is a qualification specified in that instrument.

7. Accordingly, cl 485.231(1) is met.

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

8. 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.

9. In this case, the applicant’s qualification was conferred or awarded by Federation University which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

11. 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.

12. 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.

13. ‘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.

14. The issue in dispute in this case is whether the applicant completed his relevant degree in the 6 months immediately before the application was made.

15. The applicant made his application on 9 May 2020. The decision record notes that the delegate relied on an academic transcript from Federation University that had been provided by the applicant. This academic transcript stated that the applicant completed his relevant course on 4 November 2019, which was more than 6 months immediately before the day the application was made. On this basis, the delegate was not satisfied that the applicant met the Australian study requirements.

16. In a submission to the Tribunal on 24 November 2021, the applicant claimed that Federation University had made an error on his academic transcript and submitted that he actually completed his relevant course on 6 March 2020. To support his claim, the applicant provided the Tribunal with a letter dated 11 November 2021 from Federation University in which the university stated that the applicant had completed his relevant course on 6 March 2020 and that the initial academic transcript had reflected the wrong date (4 November 2019) due to an administrative error. The applicant also provided an updated academic transcript and an updated Australian Higher Education Graduation Statement issued by Federation University recording 6 March 2020 as the completion date.

17. The documents provided by the applicant indicating that he completed his course on 6 March 2023 correspond with Department records accessed by the Tribunal indicating that the applicant was enrolled in the relevant course from 19 March 2018 to 19 March 2020.

18. Having considered the evidence before it, and in particular the updated information provided by Federation University clearly stating that the applicant completed his course on 6 March 2020, the Tribunal is satisfied that the applicant met the academic requirements for the award of his relevant qualification on that date.  

19. As 6 March 2020 is within the 6-month period immediately before the application was made, the Tribunal is satisfied that the applicant completed his relevant degree in the 6 months immediately before the application was made on 9 May 2020.

20. The Master of Technology (Enterprise Systems and Business Analytics) course at Federation University is a registered course as defined in reg 1.03. The course was completed by the applicant from March 2018 to March 2020, which is more than 16 calendar months, and was the result of at least 2 academic years of study. All instruction was conducted in English and the applicant was the holder of a valid Australian student visa at all relevant times.

21. Based on the evidence before it, 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.

22. Accordingly, cl 485.231(3) is met.

23. Based on 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

24. 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.

    Peter Katsambanis
    Member