Wanjiru (Migration)

[2022] AATA 4824

Wanjiru (Migration) [2022] AATA 4824 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dennis Kamau Wanjiru

REPRESENTATIVE:  Mr Ernie Hu

CASE NUMBER:  1935751

HOME AFFAIRS REFERENCE(S):          BCC2019/4282891

MEMBER:Antonio Dronjic

DATE:10 November 2022

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 10 November 2022 at 3:14pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, 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 Home Affairs on 4 December 2019 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 28 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 (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

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied on the evidence presented to the Department that the applicant’s Master of Applied Information Technology course was completed in the 6 months ending immediately before the day the application was made (cl.485.231(3).

4. The applicant applied for a review of the delegates’ decision on 18 December 2019 and with the review application submitted a copy of the primary decision record.

5. On 28 August 2022, the applicant submitted a Statement of Completion letter from Victoria University as evidence that the applicant completed his course on 4 July 2019. The letter further confirmed that the course was delivered between 24 July 2017 and 1 July 2019 and was conducted in English language.

6. 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 based on the material before it, pursuant to section 360(2)(a) of the Act

   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.

9. IMMI 13/013 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.

10. Based on the evidence before it, the Tribunal is satisfied that the applicant’s Master of Applied Information Technology degree course is a specified qualification and meets the requirement in cl.485.231 (1).

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

11. In respect of subclause 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.  The Tribunal is satisfied that Victoria University located in Melbourne is registered on CRICOS and offer courses at degree level and above. Therefore, the Tribunal is satisfied that subclause 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

12. 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.

13. 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.

14. ‘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.

15. The applicant completed Master of Applied Information Technology course from 24 July 2017 to 4 July 2019 which is more than 16 consecutive months of study. Based on the completion latter and applicant’s statement of results the Tribunal is satisfied that the course was completed in a total of more than 16 calendar months. Therefore, the applicant meets the requirements of r.1.15F(1)(b)

16. Based on the evidence before it, and in particular data published on the CRICOS webpage evidencing that the registered duration of Master of Applied Information Technology (083015F) course the applicant completed was 104 weeks, the Tribunal is satisfied that he meets requirements of r.1.15F(1)(a) and (c).

17. Based on the Statement of Completion letter from Victoria University, Master of Applied Information Technology course was conducted in English language. The applicant therefore satisfies 1.15F (1)(d).

18. Departmental records confirm that the applicant was the holder of a visa authorising the applicant to study during this period.  Accordingly, the applicant meets 1.15F (1)(e).

19. Based on the evidence before the Tribunal and in particular Statement of Completion letter from Victoria University the Tribunal finds that the applicant completed the requirements for the award of Master of Applied Information Technology course on 4 July 2019 and therefore, the Tribunal finds that the applicant satisfied the ‘Australian study requirement’ set out in regulation 1.15F on this date, which is within six months immediately before the date of the visa application on 28 August 2019.

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

21. 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.

    Antonio Dronjic
    Member