Vashisth (Migration)

[2024] AATA 133

Vashisth (Migration) [2024] AATA 133 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Vashisth

REPRESENTATIVE:  Mr Uday Kumar Mishra (MARN: 0215810)

CASE NUMBER:  2115256

HOME AFFAIRS REFERENCE(S):          BCC2020/1152228

MEMBER:Warren Stooke AM

DATE:4 January 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 04 January 2024 at 8:04am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Data Science – course completion date – completion of the academic requirements – decision under review remitted

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

CASES
Venkatesan v MIAC [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 October 2021 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 13 March 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 on the basis that the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate considered that the applicant had not completed the course of study at the time of application for a 485 Graduate visa.

4. The applicant appeared before the Tribunal on 3 November 2023 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. The applicant stated that it was understood the visa application was refused because his education was completed after he applied for his Temporary Visa.

7. The applicant stated that he had received a copy of the delegate’s decision and had read the decision.

8. The applicant stated that he had submitted a copy of the delegate’s decision to the Tribunal with the application for review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. At the commencement of the hearing the Tribunal advised the applicant of the following:

    The issue in this case is whether the applicant pursuant to clause 485.231 has satisfied the Minister that at the time of application the applicant had completed a course of study in the period of 6 months immediately before the day the application was made.

12. The Tribunal asked the applicant if he understood the issue in this case and the applicant responded: “Yes”.

13. The applicant provided evidence of the grant of a Bridging Visa A on 13 March 2020 with health insurance requirement – 8501 that became active upon the end of the applicant’s Student (Temporary) Visa on 15 March 2020.

14. The applicant provided evidence of an IELTS English language test undertaken on 22 February 2020 with an overall score of 6.5.

15. The applicant provided evidence of health insurance with Allianz that commenced on 20 March 2020.

16. The applicant provided evidence of a National Police Certificate dated 16 March 2020 for name check only that identified ‘no disclosable court outcomes’.

17. The applicant stated at hearing that he was currently working with Accenture, where he has worked for 2 years and has a salary of $83,000.

18. The applicant provided evidence of a transcript from La Trobe University that denoted the applicant’s course finished on 12 March 2020, together with correspondence of 8 November 2023 from the La Trobe University, Deputy Director, Academic Services, as follows:

    “This is to confirm that Mr Rahul VASHISTH has successfully completed the following qualification at La Trobe University.
    Course: SMDS - Master of Data Science
    Course Commencement Date: 05 March 2018
    Course Completion Date (qualified for admission to the degree): 17 March 2020
    Conferral Date: 13 May 2020

    The result for Mr Vashisth’s final subject, STA5ATA, was recorded on 12 March 2020. On 17 March 2020, after final checks, Mr Vashisth was set to passed in the course SMDS - Master of Data Science.
    The language of instruction of this course was English.
    This course is registered under CRICOS as having a duration of 104 weeks.
    If you have any further enquiries, please do not hesitate to contact us at 1300 LA TROBE (1300 52 87623).
    Yours Sincerely
    Rachael Innes
    Deputy Director
    Academic Services, Student Administration
    La Trobe University, Victoria, Australia”

19. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC[2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university.

20. On the basis of the evidence, the Tribunal is satisfied that the applicant had completed the requirement of the Master of Data Science at La Trobe University on 12 March 2020, which was the date included in the transcript provided to the applicant and confirmed by the Deputy Director, Academic Services, Student Administration, La Trobe University on 8 November 2023.

    Does the applicant hold a specified qualification?

21. 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.

22. In this case, the applicant holds a Master of Data Science which is a qualification specified in that instrument.

23. Therefore the applicant satisfies cl 485.231(1).

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

24. 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 14/010 and the Master of Data Science was conferred on the applicant by La Trobe University, which is a registered institution for the purposes of IMMI 14/010.

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

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

    Does the applicant meet the Australian study requirement?

27. 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.

28. 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.

29. ‘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.

30. The Tribunal is satisfied that the applicant completed a degree, diploma or other trade qualification (as defined: see reg 2.26AC(6)) in the 6 months immediately before the application was made, in a registered course (as defined: see reg 1.03), that was completed over 104 weeks, with instruction in the English language, whilst holding a valid Student Temporary Visa.

31. 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.

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

33. 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

34. 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.

    Warren Stooke AM
    Member