Sultan (Migration)

[2022] AATA 2300

Sultan (Migration) [2022] AATA 2300 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khalil Ahmed Sultan

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1918725

HOME AFFAIRS REFERENCE(S):          BCC2019/1302757

MEMBER:Amanda Mendes Da Costa

DATE:7 July 2022

PLACE OF DECISION:  Melbourne

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 7 July 2022 at 9.17am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement satisfied within 6 months ending the day before visa application made – application made on day that official notification of course completion letter issued – further letter from course provider states that applicant successfully completed all academic requirements two days before application made – ‘completed’ – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), r 1.15F(1), (2), Schedule 2, cl 485.231(3)

CASES

Sapoka v MIAC [2012] FCA 981

Venkatesan v Minister for Immigration [2008] FMCA 409

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 21 June 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 applied for the visa on 14 March 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 because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the only Australian study evidence provided by the applicant was not completed within the sixth month period ending the day before his visa application was lodged.

4. On the basis of the material in both the Department’s and Tribunal’s files (including written submissions dated 9 September 2021), and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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’s degree which is a qualification specified in that instrument.

9. Accordingly, cl 485.231(1) is met.

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

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

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

    Does the applicant meet the Australian study requirement?

12. 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.

13. 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.

14. ‘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.

15. The Tribunal has been provided with an International Notification of Completion (INC) issued by Victoria University which shows that the applicant has satisfied the requirements for a Master of Business Analytics (Professional) degree and that he commenced the course on 25 July 2017 and completed the course on 22 February 2019.

16. The applicant received credits for units he had passed during the previous semester when he was studying a Master of Business (Accounting) degree. 

17. The Tribunal further notes that the INC shows that the course was delivered on a full-time basis, was conducted in English and that the course completion date was 14 March 2019.

18. However, the Tribunal has also been provided with a subsequent letter from Asa Warnakulasuriya, Course and Unit Advisor, Victoria University Business School (dated 19 July 2021) which states:

    This is to confirm Mr Khalil Ahmed Sultan has successfully completed all the academic requirements for the award of Master of Business Analytics (Professional) from Victoria University in Year 2019 on 12/3/2019.

    The official Notification of Completion letter issued date appears as 14/03/2019 as this is a system generated document …

19. The Tribunal finds that ‘completed’ in relation to a degree, diploma or trade qualification is defined to mean ‘having met the academic requirements for its award’ (r.1.15F(2)). In Sapoka v MIAC [2012] FCA 981 the Federal Court made the following observations in relation to the meaning of ‘completed’ for the purpose of reg 1.15F:

    25.      In the timeline between a student completing the final piece of assessment of a course of study and the education institution conferring the relevant award, there comes a point when the education institution satisfies itself that the requirements have been met.  That point is reached where the result of assessment for the final course or item of assessment which the student is required to complete as part of the course of study has been made publicly available, assuming that the result of the final piece of assessment meets the institutions requirements for progression through the course.  The publication of such result is in effect a statement from the institution that the student has completed all of the necessary components for the degree to be awarded.  Accordingly, the Court reaches the same conclusion as Burchardt FM in Venkatesan[17][1].

    26.      Given that a decision as to whether a student has satisfied the requirements of a course is entirely a matter for the education institution, the point at which a student actually learns of the result, or the date when the education institution informs the student via letter, email or otherwise of the student’s results is not relevant for determining the date when a student has completed the academic requirements.  The relevant date is the date when the education institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution ….

    [1] Venkatesan v Minister for Immigration [2008] FMCA 409 at [17]:

    …. To adopt what I hope is a commonsense approach, there was nothing more for the applicant to do of an academic nature after 2 August 2006.  What was required, admittedly, were certain steps, but they were purely administrative steps that did not require any form of academic effort  by Mr Venkatesan nor any evaluation of any such effort by the university.

20. The Tribunal accepts the above reasoning and considers that it is apposite to a consideration of whether the applicant has ‘completed’ his degree qualification in the 6 months immediately before his visa application was made.

21. The Tribunal further accepts the explanation given by Asa Warnakulasuriya on behalf of Victoria University for the original statement in the INC that the applicant completed his studies on 14 March 2019.  The Tribunal is satisfied that the University has determined that this date is not correct and that the applicant completed the academic requirements for his course on 12 March 2019.

22. Based on the above information, the Tribunal finds that the applicant completed a degree qualification in the 6 months immediately before the application was made.

23. Based on the evidence before it, the Tribunal is satisfied that the specified qualification was as a result of a course that was:

    ·a registered course (as defined in reg 1.03);

    ·completed  (as defined in 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; and

    ·while the applicant was holding a visa authorising study.

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

25. 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

26. 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.

    Amanda Mendes Da Costa
    Member