Sandhu (Migration)

[2020] AATA 3165

Sandhu (Migration) [2020] AATA 3165 (5 June 2020)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jupinder Kaur Sandhu
Mr Prabhdeep Singh
Miss Raavi Kaur

CASE NUMBER:  1814760

HOME AFFAIRS REFERENCE(S):          BCC2018/1212623

MEMBER:Denise Connolly

DATE:5 June 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 5 June 2020 at 5:08pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream –applicant holds a specified qualification –2 year full time study – Australian study requirements met – qualification is a registered course – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, 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 Home Affairs on 2 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 on the basis the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied she met the Australian study requirement in the 6 months immediately before the day the visa application was made.

4. The Tribunal has considered the material before it and has decided that it is able to make a favourable decision without the need for a hearing.

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 Business Administration and a Master of Professional Accounting which are both qualifications specified in that instrument.  

8. 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. Having regard to CRICOS the Tribunal is satisfied that Holmes Institute is a specified educational institution.

10. 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.

14. Having regard to CRICOS, the applicant’s confirmation of enrolment and the information provided by the applicant from Holmes Institute, the Tribunal is satisfied the applicant completed a Master of Professional Accounting and a Master of Business Administration on 9 March 2018, that is, in the 6 months immediately before the application was made. The records provided confirm she completed the study in the period July 2016 to March 2018 and the study was undertaken on a full-time basis.

15. The CRICOS records confirm that the courses were both of 78 weeks’ duration. The delegate found that because the applicant completed the courses concurrently the applicant did not complete 2 academic years of Australian study. For the following reasons the Tribunal disagrees with this finding.

16. Having regard to submissions prepared by the applicant’s representative and information from Holmes Institute, the Tribunal accepts that each Master course was made up of 16 units. However the courses had 8 units in common, studies over 52 weeks, so the applicant only studied those units once. The Tribunal is satisfied she completed 52 weeks undertaking the units in common, 26 weeks studying the units for the Master of Professional Accounting and 26 weeks studying the units for the Master of Business Administration.  Accordingly, the Tribunal is satisfied the applicant has completed 104 weeks, or at least 92 weeks, of full-time study.

17. Having regard to the CRICOS records and the material provided from Holmes Institute, the Tribunal is satisfied the applicant’s qualifications were the result of courses that were registered, completed in a total of at least 16 months (11 July 2016 to 9 March 2018), as the result of at least 2 academic years study, for which all instruction was conducted in English. Having regard to her movement records the Tribunal is satisfied the applicant held a student visa, authorising her to study, while undertaking the study.

18. The Tribunal therefore finds that the applicant’s study for the specified qualifications satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

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

20. 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 application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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.

    Denise Connolly
    Member