Rajoli (Migration)

[2021] AATA 1154

Rajoli (Migration) [2021] AATA 1154 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pranay Kumar Rajoli

CASE NUMBER:  2003684

HOME AFFAIRS REFERENCE(S):          BCC2019/5721946

MEMBER:R. Skaros

DATE:12 February 2021

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 of Schedule 2 to the Regulations.

Statement made on 12 February 2021 at 11:04am

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

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15 , 1.03, 2.26, 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 14 February 2020 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 12 November 2019. 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

3. The delegate was not satisfied the evidence demonstrated that the applicant satisfied cl.485.231.

4. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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 Information Technology 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?

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 undertook his course at two education providers. He commenced the Master of Information Technology at Charles Sturt University, before transferring to Central Queensland University, where he completed the course. Both education providers are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above and are therefore educational institutions specified in that instrument. Accordingly, cl.485.231(2) is met.

   Does the applicant meet the Australian study requirement?

10. 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.

11. 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.

12. ‘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: Lin 19/085.

13. In this case, the Department requested the applicant to provide evidence of the date he completed his course. He did not provide the requested letter of completion and the delegate was therefore not satisfied that he met the requirements of cl. 485.231.

14. The evidence before the Tribunal shows that the applicant commenced studies in the Master of Information Technology at Charles Sturt University on 20 February 2017. The applicant provided an academic transcript demonstrating that he completed subjects at that University between 2017 and 2018.

15. The applicant also provided a letter from the Central University of Queensland dated 17 February 2020 stating that he commenced the course at that institution on 11 March 2019 and was granted exemptions due to his previous studies at Charles Sturt University. The letter confirms that the applicant satisfied the course requirements for the Master of Information Technology at Central Queensland University on 6 November 2019 and was awarded the degree on 29 November 2019. This was supported by his academic transcript from Central Queensland University.

16. Further evidence before the Tribunal confirms that the courses were registered on CRICOS as requiring 104 academic weeks of study and were taught in English. The applicant completed the course over a period of 32 calendar months and undertook the course in Australia while holding subclass 500 visas permitting the relevant study.

17. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

    ·the applicant's course, a degree within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·the course was a CRICOS registered course:

    ·the course was completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the applicant completed it in Australia and held student visas authorising study in Australia.

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

19. 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

20. 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.

    R. Skaros
    Senior Member