Pyakurel (Migration)

[2020] AATA 4108

Pyakurel (Migration) [2020] AATA 4108 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Keshab Pyakurel

CASE NUMBER:  1812767

HOME AFFAIRS REFERENCE(S):          BCC2018/1153693

MEMBER:Kira Raif

DATE:5 August 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(3) of Schedule 2 to the Regulations

Statement made on 05 August 2020 at 7:17pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – length of study – two courses completed concurrently – each being 78 weeks in duration – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231

CASES
Riaz v MIBP [2013] FCCA 224

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 19 April 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 11 March 2018. 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 the applicant completed two academic years of study for the purpose of the Australian study requirement.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

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.

6. 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.

7. ‘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:

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

8. The applicant stated in his application that he completed the following study in Australia:

   03/16 – 11/17               Master of Business Administration (MBA)
   03/16 – 11/17               Master of Professional Accounting (MPA).

9. The delegate found that both qualifications were registered for 78 weeks and the two courses were completed concurrently rather than consecutively and could not be used to add to the total of 156 weeks.

10. The Tribunal is mindful that the 2 year study requirement can be met by completing more than one qualification. There is nothing in the legislation stating that the courses cannot be completed concurrently or must be done consecutively. In this case, the applicant completed two distinct qualifications, a Master of Professional Accounting and a Master of Business Administration. The two qualifications were separately registered on CRICOS as each being of 78 weeks duration.

11. The Tribunal has had regard to the document provided by Holmes Institute in another matter, the circumstances of which were similar to the present case. In that case (Tribunal reference 1730108), the following advice was provided by Holmes College in writing:

    Students do not always complete their two degrees consecutively as per the prescribed study plan and may undertake an irregular enrolment undertaking subjects from both degrees resulting in the same completion date. However, the student will have met the requirement for both awards having completed 16 subjects and studied in excess of the 92 CRICOS weeks required

12. As the two qualifications were registered separately on CRICOS, and can be completed independently, the Tribunal is satisfied that the two qualifications can each contribute towards the 2 year study requirement.

13. The Tribunal finds that the two courses were registered courses. Information provided by the applicant indicates that many or all of the subjects were credited towards both courses and the applicant’s academic transcript shows that the applicant completed mostly the same subjects to obtain the two qualifications. However, as long as the two courses are registered as being a total of at least 92 weeks duration, and were completed or met the academic requirements for award of the degrees, recognition of prior learning or credits granted are a matter for the education provider in deciding what is required for a person to complete a course for conferral of the qualification (Riaz v MIBP [2013] FCCA 224). Thus, the Tribunal finds that the two courses were completed as a result of at least 92 weeks and 2 academic years of study.

14. The letters of completion indicate that the two qualifications were completed between March 2016 and November 2017. The Tribunal is satisfied that the courses completed by the applicant were completed in a total of at least 16 calendar months.

15. The letter of completion confirms that the programs were delivered in English. The Tribunal is satisfied that the applicant undertook study while in Australia as the holder of a visa authorising him to study. The Tribunal finds that the applicant met the Australian study requirement in r. 1.15F.

16. The applicant completed the courses in November 2017. He made the visa application in March 2018. The Tribunal is satisfied the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made. The Tribunal finds that the applicant meets cl. 485.231(3).

    Conclusion

17. 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

18. 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.

    Kira Raif
    Senior Member