SHARMA (Migration)

[2020] AATA 6074

SHARMA (Migration) [2020] AATA 6074 (22 December 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prikshit SHARMA

CASE NUMBER:  1814195

DIBP REFERENCE(S):  BCC2018/1207473

MEMBER:Ian Berry

DATE OF DECISION:  22 December 2020

DATE CORRIGENDUM

SIGNED:5 March 2021

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.    The following dot points in the first page of the decision:

·     cl.485.221 of Schedule 2 of the Regulations

·     cl.485.222 of Schedule 2 of the Regulations

are replaced with the following:

·     cl.485.231 of Schedule 2 of the Regulations.

2.    The contents of paragraph 7 are deleted and are replaced with the following:

“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 of the Regulations. This 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)) and the applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made (cl.485.231(3)). The issue in the present case is whether the applicant meets cl.485.231.”

3.    The words “cl.485.221” in paragraph 17 are replaced with “cl.485.231(3)”.

4.    The words “cl.485.221 and 485.222” in paragraph 18 are replaced with “cl.485.231”.

5.    The following dot points in paragraph 19:

·     cl.485.221 of Schedule 2 of the Regulations

·     cl.485.222 of Schedule 2 of the Regulations

are replaced with the following:

·     cl.485.231 of Schedule 2 of the Regulations.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prikshit SHARMA

CASE NUMBER:  1814195

HOME AFFAIRS REFERENCE(S):          BCC2018/1207473

MEMBER:Ian Berry

DATE:22 December 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 22 December 2020 at 11:17am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work Stream – Australian study requirements met  –decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15 , 1.03, 2.26, 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 30 April 2018 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 14 March 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

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 does not meet the criteria of having completed two academic years of study. The applicant’s letter of completion stated that the courses undertaken by him commenced on 11 July 2016 and concluded 9 March 2018 both the Master of Business Administration (MBA) and the Master of Professional Accounting (MPA) were each registered with CRICOS for 78 weeks and both of which overlapped and therefore the period of study cannot be counted more than once. In the case, the delegate found, that the two courses of study or undertaken concurrently.

4. The applicant appeared before the Tribunal on 2 August 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

5. The applicant was represented in relation to the review by his registered migration agent Mr V K Reddy MARN 0957482, Owlet Migration & Education Consulting.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

8. 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; and

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

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·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.

9. ‘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: IMMI 09/040.

10. The applicant was born in 1992; entered Australia for the purpose of study for which he held a visa relating to that study. Firstly, attending the James Cook University where he undertook six units of study in 2015 and 2016 achieving three credit points for having received a grade of C for Economics for a Sustainable World and three credit points achieving a grade P in Business Law. Because the applicant found difficulty with the courses undertaken by him, decided to enrol at the Holmes Institute Pty Ltd (trading as Holmes Institute).

11. The applicant enrolled for the MPA course and on completion would achieve a Masters degree and the MBA course, which on completion would achieve a Masters degree. The applicant was given transfer credits for units passed at the James Cook University, which are summarised from the Holmes Institute academic transcripts:

    a.Document number 11962[1] is the academic transcript dated 22 August 2018 relating to the MPA. It shows the applicant achieving an exemption for Economics for Business, a credit in Accounting for Business Decisions and credit for Managerial Accounting.

    b.Document number 11963[2] dated 22 August 2018 shows the MBA exemptions for the Unspecified Elective and the Economics of the Business, a credit for Marketing Management, a transfer credit for Accounting for Business Decisions and transfer credits for Managerial Accounting and Strategic Information Systems for Business and Enterprise.

    [1] tribunal file folio 20A

    [2] tribunal file folio 19A

12. The Holmes Institute letter dated 6 September 2019 states that the applicant was offered a place to study MBA commencing on 6 November 2017 and concluding 9 March 2018. A similar letter from the Holmes Institute dated 6 September 2019 states that the applicant was offered a place to study for his MPA commencing 11 July 2016 and concluding 9 March 2018.

13. The academic transcript relating to both the MPA and MBA signed under the seal of the Holmes Institute Pty Ltd on 13 March 2018 confirms the applicant being given exemptions for an Unspecified Elective and Economics for Business and credits for Accounting for Business Decisions, Competitive Strategy and Managerial Accounting. Of the 16 subjects the applicant received either exemptions or credits for five of the 16 subjects, however noting  that  the  applicant completed a  Bachelor of Business  in India.

14. On the evidence presented to the Tribunal, Holmes Institute has corroborated the MBA and the MPA was qualifications awarded to the applicant for having studied for these qualifications consecutively.

    Has the applicant satisfied the Australian study requirement?

15. Both the MBA and MPA were registered courses under CRICOS[3]. The applicant’s courses were completed in at least a total of 16 months. The courses were completed as a result of at lease 2 academic years of study. Both courses were taught in English, and while the applicant held a visa authorising him to study.

    [3] Commonwealth Register of Institutions and Courses for Overseas Students

16. The Tribunal finds that the applicant has satisfied the Australian study requirement.

17. Further, 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 cl.485.221.

18. Based on the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    ·cl.485.222 of Schedule 2 to the Regulations.

    Ian Berry
    Member