Sani (Migration)

[2022] AATA 4291

Sani (Migration) [2022] AATA 4291 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Umer Sani

REPRESENTATIVE:  Mr Muzamil Hafeez (MARN: 1798763)

CASE NUMBER:  1929805

HOME AFFAIRS REFERENCE(S):          BCC2019/3766685

MEMBER:Alan McMurran

DATE:12 September 2022

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 September 2022 at 6:00pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – IMMI 13/013 – letter of completion provided – decision under review remitted

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged on 21 October 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 28-year-old citizen of Pakistan. The applicant has been a postgraduate student at Charles Sturt University for the period from 24 July 2017 until completion of his course assessments on 12 July 2019.

3. The applicant applied for the visa on 30 July 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 (Cth) (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

4. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231(3) of Schedule 2 to the Regulations because the applicant had not provided a letter of completion of his studies in Australia, as well as health examinations. The Department wrote to the applicant requesting a copy of the completion letter, which was not provided during the requisite period of 28 days.

5. As the applicant had not provided evidence of the study requirement having been met in the period of six months immediately before the application was made, it was refused.

6. The applicant was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The issue in the present case is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

10. 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 Tribunal finds that the applicant holds a Master of Information Technology (Business Analysis/Cloud Computing) from Charles Sturt University, which is a qualification specified in that instrument.

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

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

12. 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

13. In this case, the Tribunal finds that the applicant’s qualification was conferred or awarded by Charles Sturt University which is an educational institution specified in that instrument.

14. Accordingly, cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

15. 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.

16. Under reg 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.

17. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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.

18. On 17 August 2022, the Tribunal received by email from the representative a copy of a completion letter from Charles Sturt University dated 23 July 2019 and signed by the Academic Director for the Study Centre, Sydney. The letter states that the applicant commenced a course of study for the postgraduate degree on 24 July 2017 which was completed on 12 July 2019, when the applicant “successfully passed all of the subjects to meet the requirements” for the postgraduate degree.

19. The Tribunal finds it is satisfied on the evidence that the applicant has completed a degree, diploma, or other trade qualification (as defined: see reg 2.26AC(6)) on 12 July 2019, and in the 6 months immediately before the application was made on 30 July 2019.

20. The Tribunal further finds that the specified qualification was as a result of a course(s) that was:

    ·a registered course (as defined: reg 1.03)

    ·completed (as defined: see reg 1.15F(2)) in a total of at least 16 calendar months

    ·as a result of at least 2 academic years (as specified) study

    ·for which all instruction was conducted in English

    ·while holding a visa authorising study.

21. 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.

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

23. 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

24. 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.

    Alan McMurran
    Member