Ramandeep (Migration)

[2020] AATA 4106

Ramandeep (Migration) [2020] AATA 4106 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kaur Ramandeep
Mr Singh Gurdeep

CASE NUMBER:  1813917

HOME AFFAIRS REFERENCE(S):          BCC2018/1223289

MEMBER:R. Skaros

DATE:5 August 2020

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 05 August 2020 at 4:12pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – length of study – concurrently undertook two courses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC; 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 1 May 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 March 2018. 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 refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because they were not satisfied that the applicant’s courses were completed as a result of at least 2 academic years of study as required by r.1.15F(1)(c).

4. The applicants were represented in relation to the review by their registered migration agent.

5. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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 Professional Accounting and a Master of Business Administration 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?

9. 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 which specifies that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses (CRICOS) that offer courses at degree level or above.

10. In this case, the applicant’s qualification was conferred or awarded by Holmes Institute which is an institution registered on CRICOS and offers courses at the degree level and above. As such, it is an educational institution which is specified in that instrument. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification 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 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.

13. ‘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.

14. The Tribunal has had regard to information on the Department’s file and the evidence provided to the Tribunal. The applicant provided the Department with a letter of completion and an academic transcript from Holmes Institute demonstrating she concurrently undertook and completed a Master of Professional Accounting and a Master of Business Administration between 14 March 2016 and 6 November 2017.

15. Additional information was provided to the Tribunal from Holmes Institute regarding the structure of the applicant’s courses. Relevantly, this stated that a student can complete 12 subjects in the Master of Professional Accounting (78 CRICOS weeks) and be awarded 8 credit exemptions to the Master of Business Administration. Four subjects must then be completed for the Master of Business Administration (26 CRICOS weeks). To be awarded both degrees a student has to complete a total of 104 CRICOS weeks in a time period of more than 16 calendar weeks.

16. In relation to the various components of the study requirement, the Tribunal is satisfied that:

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

    ·the applicant’s Master of Professional Accounting and Master of Business Administration is a 104 weeks CRICOS registered course;

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

    ·all instruction was conducted in English; and

    ·that the applicant held a subclass 573 visa authorising her to study in Australia.

17. Given the above, 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.

18. 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 applications for the first and second named applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

19. 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.

    R.Skaros
    Senior Member