Poudel (Migration)

[2022] AATA 4244

Poudel (Migration) [2022] AATA 4244 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashesh Poudel
Mrs Anusha Shrestha

REPRESENTATIVE:  Mr Srijan Thapa (MARN: 1797415)

CASE NUMBER:  1934804

HOME AFFAIRS REFERENCE(S):          BCC2019/4268537

MEMBER:Wan Shum

DATE:19 October 2022

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 19 October 2022 at 12:32pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 28 November 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 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), which includes common criteria and criteria specified to the stream applied for. In this case, the applicants applied for the visas on 27 August 2019 and the first named applicant (the applicant) is seeking to satisfy the criteria in the Post-Study Work stream, which relevantly requires that the Australian study requirement is met in the 6 months before the day on which the visa application was made as set out in cl 485.231 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visas because there was no evidence the applicant satisfied cl 485.231.

4. The applicants sought review of that decision and were represented in relation to the review.

5. On 8 September 2022, the representative provided submissions and new information regarding the applicant’s course completion date.

6. In reaching its decision 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, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The applicant declared on his visa application form that the most recently completed academic qualification in Australia was a Master of Applied Information Technology from the Victoria University from 1 November 2017 to 24 July 2019. However, the applicant did not provide evidence which reflected his claim of having completed the degree on 24 July 2019.

10. The applicant has recently provided on review a copy of a statement of ‘International Notification of Completion’ from Victoria University undated which states that the applicant satisfied the requirements for the Master of Applied Information Technology degree on 25 July 2019 at the Sydney campus.

    Does the applicant hold a specified qualification?

11. 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 degree which is a qualification specified in that instrument.

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

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

13. 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.

14. In this case, the applicant’s qualification was conferred or awarded by Victoria University which the Tribunal finds is an Australian university registered on the Commonwealth Register of Institutions and Courses for Overseas Students and offers courses at degree level and above. It is therefore an educational institution specified in the relevant instrument and cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

15. 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.

16. 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.

17. ‘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.

18. It is submitted on review that the applicant mistakenly provided the wrong version of the completion letter with his application. As noted above, the applicant has now provided on review a copy of a statement of ‘International Notification of Completion’ from Victoria University, undated, which states that the applicant satisfied the requirements for the Master of Applied Information Technology degree on 25 July 2019 at the Sydney campus. According to this statement, the course commenced on 20 November 2017 and ended on 12 July 2019. It is further stated that the “course was delivered on a full-time basis in Australia and did not have any distance learning study components. All examinations and assessments were conducted in English.”

19. The Tribunal contacted the University who confirmed that the applicant completed his Master of Applied Information Technology on 25 July 2019 and the last unit/subject was marked as passed on 19 July 2019. As noted above, the course end date was recorded as 12 July 2019 on the ‘International Notification of Completion’. While there appears to be different dates referred to in the information from the education provider as to when the course ended, the recognised date of completion was 25 July 2019.

20. Given this, the Tribunal finds on the evidence presented on review that the applicant completed his Masters studies no later than 25 July 2019 which is around one month prior to the date the visa application was made on 27 August 2019.

21. According to PRISMS records, the Master of Applied Information Technology course is registered on CRICOS for a duration of 104 weeks which means that the course was registered for more than 2 academic years study. The Tribunal finds that the Master of Applied Information Technology course is a registered course as Victoria University is a registered provider. According to the University, the course commenced on 20 November 2017 and ended on 12 July 2019, and the Tribunal finds that the course was completed by the applicant in a total of at least 16 months. The Tribunal finds that all instruction was in English and that the applicant undertook this study while in Australia as the holder of student visas authorising the applicant to study, having held two student visas granted consecutively and valid from 24 May 2017 until 19 September 2019. The Tribunal thus finds that the applicant satisfied the Australian study requirement in completing the Master of Applied Information Technology on 25 July 2019.

22. As 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, cl 485.231(3) is met.

23. 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 applicants against the remaining criteria for the visa.

    DECISION

24. 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.

    Wan Shum
    Member