Qureshi (Migration)

[2018] AATA 5343

Qureshi (Migration) [2018] AATA 5343 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahsan Mehmood Qureshi

CASE NUMBER:  1612368

HOME AFFAIRS REFERENCE(S):           BCC2016/2302554

MEMBER:Kira Raif

DATE:2 November 2018

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 02 November 2018 at 8:18am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Business Administration – course completion date – letter of completion issued on same day as visa application – date examination marking was completed and results ratified – academic effort or evaluation of such effort – publication of results – purely administrative steps – decision under review remitted

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

CASES
Venkatesan v MIAC [2008] FMCA 409
Sapkota v MIAC [2012] FMCA 137

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 Immigration and Border Protection on 25 July 2016 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 is a national of Pakistan born in June 1988. He applied for the visa on 8 July 2016. 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’s study for the qualification satisfied the Australian study requirement in the 6 months before the application was made. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing and has not presented any submissions to the Tribunal. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

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

6. 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.

7. The applicant stated on the application form that he completed a degree in Pakistan and in Australia he undertook a Master of Business Administration at the Federation University between 10 March 2012 and 7 July 2016. The applicant included with his application a letter of completion issued by Federation University on 8 July 2016. The letter of completion states that the applicant completed all the academic requirements on 8 July 2016. The delegate found that the applicant completed his course on the same day that the visa application was made and not in the six months before the application was made.

8. In his oral evidence, the applicant told the Tribunal that his Student visa was due to expire on 9 July 2016. Because he had problems getting a visa in the past, as a precaution he applied a day before his visa was due to expire. The applicant said that if he knew there would be a problem, he would have applied a day later, but he was unaware of that requirement. The Tribunal acknowledges that evidence and accepts that the applicant made the application when he did because he was concerned about the expiry of his visa. However, these matters do not assist the applicant in meeting the statutory criteria.

9. The applicant told the Tribunal that he asked the university for the completion letter as soon as he finished his exams. Following the hearing and at Tribunal’s request, the applicant provided a further letter of completion from the Federation University stating that the applicant completed examinations on 25 June 2016. The examination marking was completed and results ratified on 5 July 2016. The letter states that the results were published on 8 July 2016.

10. The Tribunal has considered the reasoning in in Venkatesan v MIAC [2008] FMCA 409. In that case the Court held at [15]-[17] that the proper meaning to be ascribed to item 1128CA(3)(l) of Schedule 1 to the Regulations is that an applicant completes the academic requirements for a course when the applicant achieves the necessary results or credits to be awarded the relevant qualifications and that credit transfers were purely administrative steps which did not require any form of academic effort by the applicant nor any evaluation of any such effort. While that case concerned itself with a different provision, the Tribunal is of the view that the same reasoning applies in the present case with respect to the term ‘completed’ in r. 1.15F. So much is made clear from the reasoning in Sapkota v MIAC [2012] FMCA 137 at [23]-[24]) where the Court followed the reasoning in Venkatesan and also held that a course is completed when its academic requirements have been satisfied and not when the person is given notification of his or her results.

11. The Tribunal must determine when the applicant achieves the necessary results and when no further academic effort is required from him and also when such results are evaluated. The most recent completion letter from the Federation University dated 1 November 2018 indicates that the examination marking was completed and results ratified on 5 July 2016. What occurred on 8 July 2016 is the publication of results. Having regard to the reasoning in Venkatesan and Sapkota, the Tribunal finds that the date when the applicant completed the course is the date when the exams were ratified as on that date the applicant achieved the necessary results or credits to be awarded the relevant qualifications. Following 5 July 2016 there were purely administrative steps to be carried out by the university in publishing the results and such steps did not require any form of academic effort by the applicant or any evaluation of such effort.

12. The Tribunal finds that the applicant completed the course on 5 July 2016 and the application for the visa was made on 8 July 2016.

13. The Tribunal is satisfied that a MBA from Federation University is a registered course. The study was undertaken between March 2012 and July 2016 and was completed in a total of at least 16 calendar months and two academic years of study. The Tribunal is satisfied the instruction for the course was conducted in English and the applicant held a visa authorising him to study.

14. 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..

    Conclusion

15. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231(3). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

16. 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