1420273 (Migration)

[2015] AATA 3501

1420273 (Migration) [2015] AATA 3501 (21 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rhea Bulatao Piol

CASE NUMBER:  1420273

DIBP REFERENCE(S):  BCC2014/2018029

MEMBER:Bruce MacCarthy

DATE:21 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 21 October 2015 at 1:52pm

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 9 December 2014 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 16 August 2014. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 at least one applicant.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because she did not satisfy the Australian study requirement.

4. The applicant appeared before the Tribunal, in a telephone conference, on 21 October 2015 to give evidence and present arguments.  The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require 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); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

7. Under r.1.15F(1) of the Regulations, the applicant will have satisfied the ‘Australian study requirement’ if she satisfies the Minister that she 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 she undertook while in Australia as the holder of a visa authorising the applicant to study.

8. ‘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 (IMMI 09/040).

9. In her application for the visa, the applicant said that she had completed a Diploma in Children’s Services qualification at the Brisbane North Institute of TAFE as a result of study undertaken between 28 January 2013 and 26 June 2014.  She had also completed a Certificate III in Children’s Services qualification as a result of study at the same institution.  She said that she studied for this qualification from January 2013 to July 2009 but the Tribunal presumes she meant from July 2009 to January 2013. 

10. On the basis of documents presented to the Department, the Tribunal is satisfied that the applicant was awarded the 2 qualifications mentioned in the previous paragraph.  It accepts that she completed the second of the 2 qualifications in July 2014, that is to say in the 6 months immediately before the application was made. 

11. On the basis of information in the delegate’s decision record, the Tribunal is satisfied that each of the 2 qualifications was achieved as a result of a course that was a registered course.  The Tribunal accepts the evidence in the application that the 2 courses were completed in a total of at least 16 calendar months study.

12. It is stated on page 3 of the decision record (a copy of which page the applicant provided to the Tribunal without comment, that the Certificate III in Children’s Services course [CRICOS Code 070805E] a CRICOS registered course with a duration of 20 weeks, and the Diploma in Children’s Services course [CRICOS Code 070807C] is a CRICOS registered course with a duration of 49 weeks.  On the basis of this information, the total duration of the applicant’s courses (69 weeks) is less than 2 academic years (92 weeks).

13. However, as discussed with the applicant at the hearing in accordance with the provisions of s.359AA of the Act, the Tribunal received advice from TAFE Brisbane that the durations of the two course were 18 weeks and 26 weeks respectively.  This information is relevant because it suggests that the applicant’s 2 courses were completed in even a few weeks of study than that indicated in the delegate’s decision.  If the Tribunal were to accept this information, it would conclude that the applicant’s qualifications were not completed as a result of a total of at least 2 academic years of study.

14. When invited to comment on this information and reminded of her right to seek more time in which to do so, the applicant elected to respond immediately.  She acknowledged that her qualifications were not completed as a result of a total of at least 2 academic years study.  She said that, before applying she had read the requirements for the visa online and had noted the that the courses be completed in a total of at least 16 calendar months of study and a total of at least 2 academic years of study.  She said she been confused and had spoken to an officer of the Department and, as a result of her conversation, she had reached the conclusion that she met the relevant criteria because her studies had taken more than 16 calendar months.

15. While the Tribunal accepts that the applicant may have thought she had satisfied the relevant criteria, it is not in a position to know precisely what she told the officers to whom she spoke or precisely what the officer said to her.  In any event, the Tribunal has no authority to waive the relevant provisions of the Regulations.

16. On the basis of the evidence before the Tribunal, it is satisfied that the applicant’s qualifications were not completed as a result of a total of at least 2 academic years of study (r.1.15F(1)(c)). Therefore, the applicant has not satisfied the Australian study requirement as defined in r.1.15(F) and therefore does not satisfy the requirements of cl.485.221 of Schedule 2 to the Regulations.

17. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Bruce MacCarthy
    Member