Tamang (Migration)

[2020] AATA 2464

Tamang (Migration) [2020] AATA 2464 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Man kumari Tamang
Mr Prazil Shiwakoti

CASE NUMBER:  1927600

HOME AFFAIRS REFERENCE(S):          BCC2019/3965662

MEMBER:R. Skaros

DATE:11 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations.

Statement made on 11 March 2020 at 1:49pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – Australian study requirements met – qualification is a registered course – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, 2.26, Schedule 2, cl 485.231
Education Services for Overseas Students Act 2000

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 19 September 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 August 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 (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 visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian study requirement in the 6 months ending immediately before the day the application was made.

4. On review, the Tribunal received further information from the applicant's education provider clarifying the day on which the applicant completed her course of study.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 of Social Work (Qualifying) degree which is a qualification specified in that instrument. Accordingly, cl.485.231(1) is met.

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

9. 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, which specifies that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses (CRICOS) that offer courses at degree level or above.

10. In this case, the applicant’s qualification was conferred or awarded by Federation University Australia, which is registered on the CRICOS and offers courses at degree level or above. It is therefore an educational institution specified in the relevant instrument. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

11. 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.

12. 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,

    ·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.

13. ‘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: LIN 19/085.

14. The Tribunal has had regard to information on the Department’s file and the evidence provided to the Tribunal, including the letters of completion from Federation University Australia, which the Tribunal has verified. The applicant provided to the Department a copy of her academic transcript issued on 2 August 2019.  The applicant also provided to the Department a letter of completion issued on 9 August 2019 from Federation University Australia indicating that she was enrolled in the master degree course and the completion date was 11 January 2019.

15. On review, the Tribunal received a new letter of completion issued by Federation University Australia on 23 September 2019 indicating that the applicant met the course eligibility requirements on 19 July 2019. The Tribunal notes there is a six month discrepancy between the completion dates on the two letters of completion provided to the Department and Tribunal. The Tribunal wrote to Federation University Australia to clarify the date of completion.

16. On 3 March 2020, the Tribunal received a response from the Coordinator, Student Progress and Success, Federation University Australia confirming that the date of completion is 19 July 2019 and explaining that the letter issued on 9 August 2019 had been populated with an automated date of the student’s last semester enrolment and that was incorrect because it did not consider that the applicant had outstanding placement days to complete.

17. The Tribunal is satisfied with the explanation provided by the education provider in and finds on this basis that the applicant completed the requirements for the master degree qualification on 19 July 2019.

18. In relation to the various components of the study requirement, the Tribunal is satisfied that:

    ·     the applicant completed a degree within the meaning of r.2.26AC(6) on 19 July 2019, being in the 6 months immediately before the application was made;

    ·     the applicant’s Master of Social Work (Qualifying) is a 104 weeks CRICOS registered course;

    ·     the course was completed in a total of at least 16 calendar months and as a result of at least 2 academic years study;

    ·     all instruction was conducted in English; and

    ·     that the applicant held a Subclass 500 visa authorising her to study in Australia.

19. Give the above, the Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Accordingly, cl.485.231(3) is met.

20. On the basis of the above findings, the Tribunal finds that the first named 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

21. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations.

    R. Skaros

    
    

    Senior Member