Tamrakar Joshi (Migration)

[2017] AATA 1579

Tamrakar Joshi (Migration) [2017] AATA 1579 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Grishma Tamrakar Joshi
Master Nevaan Joshi
Mr Nirajan Joshi

CASE NUMBER:  1709864

DIBP REFERENCE(S):  BCC2017/940284

MEMBER:Denise Connolly

DATE:4 September 2017

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 04 September 2017 at 12:13pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Academic requirements met within 6 months immediately before visa application made

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, 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 Immigration on 27 April 2017 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 9 March 2017. Visa Class VC contains Subclass 485. 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 visas on the basis that the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant’s study satisfied the Australian study requirement in the period of 6 months before the application was made.

4. The applicants appeared before the Tribunal on 30 August 2017 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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 (Post-study work) stream which include cl.485.231 of Schedule 2 to 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)). It also requires that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (cl.485.231(2)); and that 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 these 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, ‘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.

10. Regarding cl.485.231(1) the Minister has specified the qualifications in the instrument in writing , IMMI 13/013. It provides that the following qualifications that are as a result of study undertaken at Australian Qualifications Framework level seven or higher:

    (a)Bachelor Degree;

    (b)Bachelor ( Honours) Degree;

    (c)Masters by Coursework Degree;

    (d)Masters by Research Degree;

    (e)Masters (Extended) Degree and/or;

    (f)Doctoral Degree.

11. Regarding cl.485.231(2) the Minister has specified in an instrument in writing, 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.

12. The applicant has completed a Master of Professional Accounting (Standard) at King’s Own Institute (KOI) having studied there in the period March 2016 to March 2017. Having regard to the CRICOS database the Tribunal finds the course is CRICOS registered, of 104 weeks’ duration and the instruction is in English. 

13. The applicant has provided evidence to the Tribunal that she commenced an equivalent course (Master of Professional Accounting (Professional Practice)) at Charles Darwin University (CDU) where she studied in the period March 2015 to November 2015. She told the Tribunal she transferred from CDU to KOI because the CDU course was not flexible enough. The Tribunal has considered the CRICOS records and finds that the CDU’s Master of Professional Accounting (Professional Practice) is a CRICOS registered course of 104 weeks’ duration, conducted in English.

14. After making her visa application the applicant provided a letter of completion dated 10 March 2017 from KOI stating the applicant completed the course on 10 March 2017, that is, after her visa application.

15. The Tribunal discussed with the applicant at the hearing the requirements of the law. The applicant provided evidence that she was sent notification on 7 March 2017 confirming that she had completed the last 3 subjects to meet the requirements of the course.  The Tribunal noted that the advice indicates she completed the last 3 subjects however it was of the view this was not sufficient to confirm she met all academic requirements for the completion of the course. The Tribunal gave the applicant an opportunity to provide further evidence from KOI, and further evidence regarding her study at CDU.

16. On 30 August 2017 the applicant provided the evidence regarding the study she undertook at CDU, her confirmation of enrolment advices for the CDU and KOI courses, correspondence from CDU confirming she studied at that education institution from March 2015 to November 2015 for the Master of Professional Accounting (Professional Practice) and the relevant transcript which indicates she failed 3 out of 8 subjects.

17. On 31 August 2017 Chandra Sundaresan, Deputy Dean, KOI wrote to the Tribunal and advised that on 6 March 2017 the Board of Examination ratified the applicant’s results. The results were then published that evening and made available to the applicant. The completion letters were subsequently issued on 10 March 2017.

18. The applicant has provided a Statutory Declaration in which she claims she transferred from CDU to KOI because it was difficult to manage administrative procedures because CDU’s head office was located in Darwin.  The Tribunal is not persuaded by this because the CRICOS database confirms CDU has a campus in Sydney. It is of the view the applicant transferred because she was having difficulty with the CDU as evidenced by her failure of 3 out of 8 subjects. It also notes having regard to her transcripts that the applicant was awarded recognition for prior learning by KOI for 6 subjects on the basis of 5 subjects. It appears to the Tribunal that the KOI course was not as demanding for the applicant.

19. The Tribunal is satisfied on the basis of KOI’s advice that the applicant’s date of completion of the Master of Professional Accounting (Standard) was 6 March 2017 when the Board ratified his results.

20. On the basis of information in the applicant’s completion letter, KOI’s advice of 31 August 2017 and the CRICOS records the Tribunal is satisfied that on 6 March 2017 the applicant completed a Master of Professional Accounting (Standard) which she had undertaken in the period March 2016 to March 2017. This qualification is of a kind specified by the Minister in an instrument in writing. The Tribunal finds that the applicant was awarded RPLs by KOI for subjects she completed at CDU. It finds she completed part of a Master of Professional Accounting (Professional Practice) at CDU in the period March 2015 to November 2015. That course and the Master of Professional Accounting (Standard) at KOI both meet the requirements of cl.485.231(1). Both CDU and KOI are CRICOS registered institutes which offer courses at degree level and above, and so cl.485.231(2) is met.

21. The Tribunal is also satisfied the applicant’s courses were registered, both of at least 2 academic years, and that were completed in a total of at least 16 calendar months (9 months at CDU and 12 months at KOI). It is also satisfied the courses were conducted in English.  The applicant’s movement records confirm she held a student visa during the relevant period. She was therefore authorised to study in Australia while undertaking the course.

22. Having found the applicant completed the course on 6 March 2017 the Tribunal is satisfied she completed a Master degree and satisfied the Australian study requirement in the 6 months immediately before the application was made and so cl.485.231(3) is met.

23. Therefore, the applicant meets cl.485.231.

24. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of 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 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.

    Denise Connolly
    Member