Castellanos Barrantes (Migration)

[2019] AATA 6202

Castellanos Barrantes (Migration) [2019] AATA 6202 (30 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cindy Alejandra Castellanos Barrantes

CASE NUMBER:  1709459

HOME AFFAIRS REFERENCE(S):          BCC2017/466785

MEMBER:Warren Stooke AM

DATE:30 October 2019

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 30 October 2019 at 2:22pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – studies completed in an academic year – study duration of at least 92 weeks – incorrect CRICOS code applied to course – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.231; rr 1.03, 1.15

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 and Border Protection on 20 April 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 5 February 2017. 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 (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 on the basis that the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate, based on the CRISCOS code for the Master of Marketing found that the course length was for 78 weeks, rather than the minimum of 92 weeks (2 academic years) prescribed in the instrument regarding the study requirement.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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?

7. 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 of the Register of Instruments - Skilled visas. In this case, the applicant holds a Master of Marketing, which is a qualification specified in that instrument.

8. Accordingly, cl.485.231(1) is met.

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

9. Subclause 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 16/003 of the Register of Instruments - Skilled visas and the CRISCOS Code for Monash University is 01857J. In this case, the applicant’s qualification was conferred or awarded by Monash University, which is an educational institution specified in that instrument.

10. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

11. 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.

12. 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,

    ·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.

13. ‘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, 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 of the Register of Instruments - Skilled visas.

14. The Tribunal is satisfied on the evidence that the applicant completed her course of study over a 2 year period, based upon new evidence provided by Monash University, in the following correspondence of 26 April 2017:

    “Re: Ms. Cindy Alejandra CASTELLANOS BARRANTES - Monash ID 25893947

    This is to confirm that the above student has completed her 2 years Master of Marketing degree program at Monash University, graduated in December 2016.

    Initially a 1.5 year Master of Marketing eCOE was issued for this student. The CRICOS code used on the Master of Marketing eCOE (679AD621) was 031027K. Upon receiving the student's request to change the course duration for the Master of Marketing program from 1.5 years to 2^.years, a new eCOE was issued to this student (69D2A520). Unfortunately on the new two years Master of Marketing eCOE, the CRICOS code used was the 1.5 year CRICOS code (031027K) instead of the 2 years CRICOS code (082335,1). Strangely Department of Education and Training online database (called the Provider Registration and International Student Management System / PRISM) allowed issuance of such eCOE. Therefore this student was given a 2 years Master of Marketing course duration eCOE with 1.5 year Master of Marketing CRICOS code. This should not had happened as the CRICOS code used on The new eCOE was registered for 1.5 year course duration and not for 2. Hence the error was not picked up and this student has been granted a student visa to study a 2 year Master of Marketing with the wrong CRICOS code.

    Should you need further information in relevant to this or Ms Castellanos Barrantes's studies at Monash University, please feel free to contact me.”

15. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. In this regard, the applicant completed a 2 year Masters of Marketing at Monash University in December 2016 and applied for a Post-Study Work stream 485 visa on 5 February 2017, which is within 6 months of completing the relevant course.

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

17. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231 and that the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. 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