Riaz (Migration)

[2019] AATA 4503

Riaz (Migration) [2019] AATA 4503 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rizwan Riaz

CASE NUMBER:  1730012

HOME AFFAIRS REFERENCE(S):           BCC2017/3127300

MEMBER:Danielle Galvin

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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 09 September 2019 at 1:37pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant’s degree was completed in a total of 16 calendar months – 2 year study requirement met– qualification is a registered course– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.03, 1.15F(1), 2.26AC, Schedule 2, cls 485.111, 485.231
Education Services for Overseas Students Act 2000

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 13 November 2017 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 29 August 2017. 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 visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the applicant completed a Masters of Environmental Science on 30 August 2017, the day after the date he lodged his visa application. The delegate therefore found that the applicant had not satisfied the Australian Study Requirement in the period of 6 months ending immediately before the day the application was made and therefore did not meet r.485.231(3). The consequence was that the delegate therefore found that the applicant did not meet the criteria for the grant of a Temporary Graduate (Post-Study Work) visa in the Post-Study Work stream

4. The applicant submitted the following documents to the Tribunal in support of the application:

   ·Undated statement of the applicant, explaining that the cause of the error in timing was as a result of the University delaying the process in confirming the degree completion;

   ·Overseas student enrolment details;

5. On 9 May 2019 the Tribunal sent an email to Western Australia University admissions seeking information under 359(1) as to when the applicant’s course was completed and requested response by 23 May 2019. On the 24 May 2019 the Tribunal sent a further email seeking this information.

6. The Tribunal had already received a submitted letter, dated 17/11/17, from Asha Jones, Student Administration, from the University of Western Australia, stating that all the applicant’s course requirements were completed on 30/8/17, confirming that the applicant’s course was completed on 30/8/17.

7. The applicant appeared before the Tribunal via video link from Perth for a hearing on 23 July 2019 to give oral evidence and present arguments.

8. The applicant stated that he had made his visa application on 29 August 2017 on the understanding that he had completed his degree on 25 August 2017. The Tribunal put to the applicant that the letter from the University indicated that completion had occurred on 30 August 2017 and not before and he was therefore one day too early in making his application. It was put to the applicant that if this evidence was correct the delegate’s decision may be affirmed. The Tribunal gave the applicant the opportunity to approach the University to seek clarification of his completion date and to request that the University reconsider its position. The applicant had until 6 August 2019 to provide evidence to the Tribunal that the University had altered its position in relation to the completion date.

9. The applicant sought and was granted an extension of time until 20 August 2019 in which to provide further information.

10. On 16 August 2019 the applicant sent to the Tribunal a letter dated 8 August 2019 from Professor David Sadler, Deputy Vice Chancellor (Education) of the University of Western Australia stating that, “Based on the advice provided that on 23 August  and 25 August by the University that Mr Riaz had successfully completed the requirements of the units and the course Mr Riaz communicated in this application that he had completed his course. The University can confirm that at the time of submission of his application for a further visa, Mr Riaz had successfully completed the requirements of his course. Other than the administrative processing of his results by the University, no further actions were required, or were outstanding, from Mr Riaz to complete his course at the time of his visa application being submitted.”

11. For the following reasons the Tribunal finds that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    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?

12. 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 Environmental Science (Geographic Information Science and Environmental Management) which is a qualification specified in that instrument.

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

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

14. 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 that specifies for the purposes of cl.485.231(2) that Australian Universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offer courses at degree level and above.. The Tribunal confirms that the University of Western Australia is a CRICOS registered provider (CRICOS provide code :00126G).

15. Given that the applicant’s qualification was conferred or awarded by the University of Western Australia cl.485.231(2) is met.

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

16. 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.

17. 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.

18. ‘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.

19. The applicant commenced their course on 27 July 2015 and completed it, according to the recent advice from the University, by the date of this visa application.

20. Evidence from the CRICOS database confirms that the applicant’s course is registered and the departmental records indicate that the applicant held a student visa while studying and was therefore authorised to study.

21. Having regard to all of the evidence, including the additional information not before the delegate, the Tribunal is satisfied that the applicant achieved the necessary results to enable him to be awarded his Master’s degree within the requisite timeframe. Further, given the evidence submitted from the University the Tribunal is satisfied that the applicant’s degree was completed in a total of 16 calendar months and as a result of a total of at least 2 academic years study. The course is conducted in English as evidence by the University of Western Australia’s website information.

22. 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.

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

24. 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

25. 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.

    Danielle Galvin
    Member