Sharma (Migration)

[2018] AATA 3133

Sharma (Migration) [2018] AATA 3133 (17 July 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Meenakshi Sharma Mr Akshay Sabharwal

CASE NUMBER:  1718513

DIBP REFERENCE(S):  BCC2017/2298509

MEMBER:  Bridget Cullen

DATE:  17 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations.

Statement made on 17 July 2018 at 4:51pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-study work – Australian study requirements – Evidence of completion of Masters course provided – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F, 2.26AC Schedule 2 cls 485.111, 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 Immigration to refuse to grant the applicants Temporary Graduate (Class VC) Temporary Graduate (Post-Study Work) (subclass 485) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 28 June 2017. The delegate refused to grant the visas on 31 July 2017.

1. The delegate refused to grant the visas because the first named applicant did not satisfy cl.485.231(3) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed the coursework for her Master of Information Technology - Advanced degree, completed at the Queensland University of Technology, in the last six months ending immediately before the day the application was made.

1. The applicants have provided a copy of the primary decision to the Tribunal, and the Tribunal has perused both the files of the Department and the Tribunal.

1. The applicants appeared before the Tribunal on 14 June 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who attended the Tribunal hearing.

1. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post Study-Work stream which includes cl.485.231 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets those requirements.

Does the applicant meet the Australian study requirement?

1. Clause 485.231 requires that:

·the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing (cl.485.231(1));

·each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (cl.485.231(2));

·the applicant has satisfied the 'Australian study requirement' in the period of six months ending immediately before the day the application was made (cl.485.231(3)).

1. For the purposes of cl.485.231(1), the Minister has specified the qualifications in instrument IMMI 13/013, that is, qualifications undertaken at Australian Qualifications Framework (AQF) level seven or higher:

·Bachelor Degree;

·Bachelor (Honours) Degree;

·Masters by Coursework Degree;

·Masters by Research Degree;

·Masters (Extended) Degree and/or;

·Doctoral Degree.

1. For the purposes of cl.485.231(2) the Minister has specified in instrument IMMI13/031 that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.

1. Relevant to cl.485.231(3), under r.1.15F(1) of the Regulations, a person satisfies the 'Australian study requirement' if the person has completed one 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; and

·were completed in a total of at least 16 calendar months; and

·were completed as a result of a total of at least two academic years' study; and

·for which all instruction was conducted in English; and

·an applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

1. '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). For the purposes of this case, '2 academic years' is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

1. Regulation 1.15F(2) defines the term 'completion' of a degree, diploma or trade qualification as follows:

(2) In this regulation:

"completed ", in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

1. It follows that the issues to be determined by the Tribunal are as follows:

·Does the applicant hold a qualification of a kind specified? And, if so,

·Was the qualification conferred or awarded by a specified institution? And, if so,

·Did the applicant satisfy the Australian study requirement in the period of six months ending immediately before the day of the visa application?

1. The Tribunal notes that when the applicant lodged her application, she provided the Department with a letter of completion and academic transcripts stating that she finished her course on 11 July 2017, after the time that she applied for the visa.

1. During the hearing, the applicant explained that she had, in fact, completed all of the academic requirements for her Master of Information Technology – Advanced course before she applied for the visa on 28 June 2017. The Tribunal provided the applicant with the opportunity to provide further information in support of this assertion following the hearing.

1. On 27 June 2018, the applicant provided the Tribunal with a letter from a QUT University Registrar on official letterhead indicating that she had completed “all assessment requirements” for the Master of Information Technology – Advanced course on or before 23 June 2017. Based on this evidence, the Tribunal is satisfied that the applicant completed a degree (as defined in r.2.26AC (6)) in the six months immediately before the application was made.

1. The evidence before the Tribunal further confirms that the course otherwise satisfies the Australian Study Requirements.

1. Accordingly the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets the requirements of cl.485.231.

1. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

   ·cl.485.231 of Schedule 2 to the Regulations

Bridget Cullen Member