Singh (Migration)

[2023] AATA 218

Singh (Migration) [2023] AATA 218 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anuj Singh

CASE NUMBER:  2001875

HOME AFFAIRS REFERENCE(S):          BCC2019/4577898

MEMBER:Wan Shum

DATE:2 February 2023

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 02 February 2023 at 10:09am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification completed within 6 months before visa application made – completion letter provided to department and tribunal shows completion date after application made – later letter states final unit assessed before application made – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)

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 13 January 2020 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 applied for the visa on 12 September 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the evidence provided indicated that he had completed his degree after the application was lodged.

4. The applicant appeared before the Tribunal by videoconference using Microsoft Teams on 12 January 2023 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 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.

7. On 12 September 2019, the applicant lodged an Application for Temporary Graduate visa form electronically which was completed with the following details under Australia qualifications: Master of Business Administration at Western Sydney University from 8 January 2015 to 8 September 2019. He also provided details of an overseas qualification but this is not presently relevant.

8. The applicant submitted a completion letter from the University dated 25 September 2019, which relevantly states that the applicant’s final results were first published on 12 September 2019 and the applicant had satisfactorily met all course requirements on 25 September 2019. Based on this information, the delegate found that the course was completed after the application was made.

9. On review, the same 25 September 2019 completion letter was also provided to AAT. No other evidence was provided.

10. During the hearing, the applicant gave evidence that he had known that he met all course requirements prior to applying for the visa. The Tribunal requested confirmation from the University regarding the date when the last unit/subject was marked as passed and allowed further time to provide this information.

11. On 31 January 2023, the Tribunal received an email from the applicant attaching a letter from Dr Laurel Jackson, Director Postgraduate Education, Sydney Graduate School of Management School of Business, Western Sydney University, who was the project supervisor and assessing faculty of the applicant's last remaining business project (200829) unit for the purpose of completing his Master of Business Administration course. Dr Jackson relevantly states that the applicant submitted his final business project report (relevant item for assessment) on 2 September 2019, which was subsequently graded and internally assessed by the 9 September 2019 and marked as satisfactory by that date. Dr Jackson added that the applicant was aware of the report being assessed by that date as he was away on leave starting 9 September 2019. In summary, Dr Jackson confirmed that the applicant did not have anything more of an academic nature to complete as of that date.

12. On the evidence provided, the Tribunal finds that the applicant completed a Master of Business Administration course from Western Sydney University on 9 September 2019.

    Does the applicant hold a specified qualification?

13. 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 which is a qualification specified in that instrument.

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

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

15. 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.

16. In this case, the applicant’s qualification was conferred or awarded by Western Sydney University which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

18. 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.

19. 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.

20. ‘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.

21. The information before the Tribunal reflects that the Master of Business Administration course is a registered course and the applicant was enrolled in this course from 12 January 2015 to 08 September 2019, which means that the course was completed by the applicant in 4 years and 8 months, and the course was registered for 104 weeks which is more than 2 academic years study. The Tribunal further finds that all instruction was in English and that the applicant undertook the course while in Australia as the holder of student and bridging visas authorising the applicant to study.

22. The Tribunal has given its findings above in respect of the date the applicant completed a Master of Business Administration course, which it accepts was on 9 September 2019. As the application was made on 12 September 2019, the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months ending immediately before the date of the visa application.

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

24. Based on 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.

    Wan Shum
    Member