Varughese (Migration)

[2024] AATA 769

Varughese (Migration) [2024] AATA 769 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joshua Ajay Varughese

CASE NUMBER:  2208660

HOME AFFAIRS REFERENCE(S):          BCC2020/2204653

MEMBER:Peter Katsambanis

DATE:2 April 2024

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 02 April 2024 at 1:41pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – two academic years of relevant study – courses completed within 6 months before visa application – completion date provided upon review – decision under review remitted      

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231, 485.232, 485.233; rr 1.03, 1.15

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 26 May 2022 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 30 August 2020. 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, 485.232 and 485.233.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations on the basis that the delegate was not satisfied that the applicant had completed his relevant course in the 6 months ending immediately before the day the visa application was made.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. Clause 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 has provided evidenced that he holds a Bachelor of Agriculture with a major in Production Animal Science, which is a qualification specified in that instrument.

7. Therefore, the applicant satisfies cl 485.231(1).

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

8. Clause 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.

9. In this case, the academic transcript provided to the Tribunal by the applicant indicates that his Bachelor of Agriculture qualification was conferred or awarded by the University of Melbourne, which is an educational institution specified in that instrument.

10. Therefore the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

11. Clause 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 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.

13. ‘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.

14. In the applicant’s case, he did not provide the Department with any evidence of when he actually completed his Bachelor of Agriculture qualification at the University of Melbourne, instead relying on his ceremonial graduation certificate which did not include a completion date. On this basis, the delegate was not satisfied that the applicant had completed his relevant qualification in the 6 months immediately before the application was made.

15. Since he lodged his application for review, the applicant has provided the Tribunal with a copy of his academic transcript from the University of Melbourne dated 5 October 2020 which lists the course completion date as 4 August 2020. This information was not previously available to the delegate.

16. The applicant made his visa application on 30 August 2020. Accordingly, having completed his degree on 4 August 2020, the Tribunal is satisfied that the applicant completed his relevant qualification in the 6 months immediately before the application was made. The course was a registered course as defined in reg 1.03. The academic transcript shows that the applicant studied for his relevant qualification in 2017, 2018, 2019 and 2020, which therefore satisfies the requirement in reg 1.15F(2) that the qualification be completed in a total of at least 16 months and the requirement that it be completed as a result of at least 2 academic years (as specified) study. All instruction for the relevant qualification was conducted at the University of Melbourne in English and at all times whilst completing these studies, Department records confirm that the applicant was the holder of a visa authorising such study.

17. Therefore, on the evidence before it, the Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

19. 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

20. 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.

    Peter Katsambanis
    Member