Veersing (Migration)

[2024] AATA 166

Veersing (Migration) [2024] AATA 166 (2 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sharath Chandra Veersing

REPRESENTATIVE:  Mr Sujeevan Kumar Peru (MARN: 1909662)

CASE NUMBER:  2117315

HOME AFFAIRS REFERENCE(S):          BCC2020/2323474

MEMBER:Amanda Mendes Da Costa

DATE:2 February 2024

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 2 February 2024 at 9.45am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – qualification completed after application made – all requirements completed before but letter of completion dated after – student portal confirmed successful completion – letter dated on day of issue – later notification of completion provided – ‘completed’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F(1), (2), 2.26AC(6), Schedule 2, cl 485.231(3)

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 4 November 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 17 September 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 because he did not satisfy the Australian study requirements.

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments.

5. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

6. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicant that it would seek submissions from him toward the end of the Tribunal hearing on any matter he considered relevant to the review.

7. Although the applicant was represented in relation to the review, his representative did not attend the hearing. At the commencement of the hearing the applicant told the Tribunal that he consented to the hearing proceeding without his representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. 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 holds a Master of Applied Information Technology degree which is a qualification specified in that instrument.

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

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

12. 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.

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

14. Therefore, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

15. 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.

16. 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.

17. ‘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.

    Background

18. In his visa application the applicant declared that the following completed course of study under the Australian qualifications:

    ·Master of Applied Information Technology at Victoria University with the period of study being from 19 November 2018 to 17 July 2020.

19. On 15 February 2021, the applicant provided the Department with a letter of completion for the applicant’s Master of Applied Technology, which was obtained from Victoria University. In that letter, the University states that that the applicant completed his course on 12 February 2021.

20. Based on the above information the delegate found that the applicant did not meet the requirements of cl 485.231 because his course was completed after the visa application was made.

21. The Tribunal notes that the applicant has provided it with an International Notification of Completion letter signed by Naomi Dempsey, Pro Vice-Chancellor (Students) at Victoria University. In that letter Ms Dempsey states that the applicant commenced her Master of Applied Technology course on 19 November 2018 and completed the course on 10 July 2020. She further states that the applicant’s course ended on 10 July 2020.

22. The applicant told the Tribunal that he had commenced his course in November 2018 and had completed it in June 2020. He explained that when he checked his online Student portal in early July 2020, he read a message from the University confirming that he successfully completed all of the studies required for his Master of Information Technology degree.  This evidence is consistent with the declaration in the applicant’s visa application form that his course of studies was undertaken between 19 November 2018 and 17 July 2020.

23. The applicant further explained that in response to his request, the University provided him with the Notification of Completion of his course which contains a course end date of 10 July 2020 and a course completion date of 12 February 2021. He said that the course completion date is the date on which the letter was generated and not the actual date on which he was advised by the University that he had successfully completed the course.

24. The Tribunal accepts the applicant’s oral evidence finding him to be a credible witness whose evidence was supported by the information contained in the Notification of Completion letter from Victoria University which states that the applicant’s course commencement date was 19 November 2018, and the course end date was 10 July 2020. Accordingly, the Tribunal finds that the applicant commenced his course of studies for the Master of Information Technology degree on 19 November 2018 and completed the course on 10 July 2020.

25. Based on the evidence before it’s the Tribunal is satisfied that:

    ·Completed a degree qualification (Master of Applied Information Technology) (reg 2.26AC(6) in the six months immediately before the application was made.

    ·The applicant’s qualification was as a result of a course that was:

    oa registered course (reg 1.03);

    ocompleted (reg 1.15F(2)) in a total of at least 16 calendar months.

    oas a result of at least 2 academic years study;

    ofor which all instruction was in English; and

    owhilst the applicant held a visa authorising study.

26. 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.

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

28. Based on 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

29. 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