Zar (Migration)

[2017] AATA 1570

Zar (Migration) [2017] AATA 1570 (25 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ali Zar

CASE NUMBER:  1711118

DIBP REFERENCE(S):  BCC2017/992088

MEMBER:Denise Connolly

DATE:25 August 2017

PLACE OF DECISION:  Sydney

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.485.221 of Schedule 2 to the Regulations.

Statement made on 25 August 2017 at 11:34am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Applicant provided further evidence of course completion

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, Schedule 2, cl 485.111, cl 485.221

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 10 May 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 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 the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant satisfied the Australian study requirement in the period of 6 months before the application was made.

4. Prior to the hearing the applicant provided further evidence from the education provider Melbourne Institute of Technology dated 17 May 2017. On the basis of this information the Tribunal has been able to make a favourable decision and a hearing was not required.

5. The applicant was represented in relation to the review.

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 Work stream which include cl.485.221 of Schedule 2 to the Regulations which requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221). The issue in the present case is whether the applicant meets those 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. The applicant has provided the following evidence. In his visa application lodged on 13 March 2017 the applicant stated that he completed various courses in Australia, most recently a Bachelor of Networking at the Melbourne Institute of Technology (MIT) in the period 15 March 2014 to 10 March 2017.

11. The completion letter from MIT first lodged indicated that he completed the course on 16 March 2017, after the visa application was made. The letter also confirmed the following:

    a.The course duration was 3 academic years (full-time)

    b.All instruction was conducted in English

    c.It was completed in the period March 2014 to March 2017.

12. The Tribunal has also received a letter from MIT dated 17 May 2017 explaining that the applicant actually completed all academic requirements for the Bachelor of Networking on 10 March 2017. The applicant had completed one of his units at Federation University because of low enrolments in that unit at MIT. Federation University took a few days to administratively notify MIT that the applicant had completed the unit on 10 March 2017. Accordingly MIT has now amended the applicant’s completion date to 10 March 2017, before the visa application was made.

13. Evidence from the CRICOS database confirms that the applicant’s course is registered. The applicant’s movement records confirm that he held a student visa while studying and was therefore authorised to study.

14. Having regard to all of the evidence the Tribunal is satisfied the applicant has completed a Bachelor degree on 10 March 2017, in the 6 months immediately before the visa application was made. Having regard to the CRICOS website the Tribunal is also satisfied the course was registered, of 156 weeks’ duration (or 3 academic years) and conducted in English. It was completed in the period March 2014 to March 2017, that is, in a total of at least 16 calendar months.

15. On this basis the Tribunal is satisfied the applicant met the Australian study requirement the 6 months immediately before the day the visa application was made. Therefore, the applicant meets cl.485.221.

16. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. 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.485.221 of Schedule 2 to the Regulations.

    Denise Connolly

    
    

    Member