Chongo (Migration)

[2024] AATA 707

Chongo (Migration) [2024] AATA 707 (28 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mubanga Chongo

REPRESENTATIVE:  Mrs Nannan Liu (MARN: 0964114)

CASE NUMBER:  2202813

HOME AFFAIRS REFERENCE(S):          BCC2021/1139116

MEMBER:P. Maishman

DATE:28 March 2024

PLACE OF DECISION:  Perth

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

Statement made on 28 March 2024 at 10:55am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – qualification completed within 6 months before application made – regular units completed, results received and university’s first letter gave expected completion date before application made – second letter gave date after application made – delay in completing practicum – claimed work experience in home country given no weight – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15(1), Schedule 2, cl 485.231(3)(a)

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 14 February 2022 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 25 May 2021. 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 the criteria in Subdivision 485.23.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231(3) of Schedule 2 to the Regulations because he did not satisfy the study requirement.

4. The applicant appeared before the Tribunal on 12 March 2024 to give evidence and present arguments.  

5. The applicant was represented in relation to the review. The applicant’s representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does cl 485.231 apply to the applicant?

7. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.231(1A).

8. Departmental records show the applicant held a SC500 visa and Bridging Visa prior to making the current application. There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a) or 485.233(1)(a). The applicant therefore does not satisfy cl 485.232 or 485.233, and cl 485.231 applies.

9. If cl 485.231 applies, the applicant must hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, and have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

   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 Bachelor of Engineering (Civil) Honours 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 13/031.

13. In this case, the applicant’s qualification was conferred or awarded by Edith Cowan University (ECU) 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 met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

16. The Tribunal has had regard to the Departments arrival and departure records and finds the applicant arrived in Australia in 2013 and has not departed. The Tribunal finds the applicant was not outside Australia between 1 February 2020 and 19 September 2020.

17. 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.

18. ‘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.

19. The applicant gave the Tribunal a copy of the delegate’s decision record which outlines the history of the visa application. In summary, the delegate outlined the application was lodged on 25 May 2021 and the applicant declared he completed a Bachelor of Civil Engineering  between 16 February 2015 and 26 March 2021. The Department received a letter from ECU indicating the applicant was expected to complete the course at the end of April 2021. The applicant gave the Department a letter from ECU dated 25 November 2021 stating the applicant completed the course on 25 November 2021. The delegate found the applicant did not meet the Australian study requirement in the 6 months immediately before the day the visa application was made.

20. The Tribunal has had regard to the documents on the Department’s file and finds the applicant completed a Bachelor of Engineering (Civil) Honours which is a registered course (CRICOS code 083180D). The course was completed over a period longer than 16 months and as a result of more than two academic years of study. The course was conducted in English and undertaken by the applicant while he was in Australia as the holder of a student visa.

21. The Tribunal is satisfied the applicant met the Australian study requirement as defined in reg 1.15F.  

22. The issue for the Tribunal is whether the applicant met the Australian study requirement in the period of 6 months before the day the visa application was made, i.e.. 25 May 2021: reg 485.231(3)(a).   

23. At hearing the applicant confirmed he read and understood the delegates decision. The Tribunal referred the applicant to the ECU correspondence dated 25 May 2021 and 25 November 2021. The Tribunal noted the ECU letter dated 25 May 2021 indicated the applicant completed all credit points required for the course and completion was expected to be considered by the Board of Examiners on 22 April 2021, however the ECU letter dated 25 November 2021 says the course was completed on 25 November 2021.  

24. The applicant says he considered he finished the course when he received his results which was in March 2021. The applicant was unable to explain the discrepancies surrounding the course completion date and suggested the delay was perhaps because he had to prove he had completed a 300 hour practicum in 2018 which he might not have uploaded until November 2021. The applicant said he had not obtained any clarification of the discrepancy from ECU because he no longer had a student email account. The applicant further stated ECU had not responded to an email he had sent a month prior to the hearing. The applicant said he had not taken any steps to contact ECU by an alternative method.    

25. The Tribunal observes the applicant understood the details of the delegates decision and has been represented in his review application by a registered migration agent since applying for a review of the decision. The Tribunal expressed its concern that despite the review application having been on foot for two years, and the applicant and his representative having had more than a months’ notice of the listed hearing, no relevant submissions or documents that might address the discrepancy in the completion dates have been provided. The Tribunal told the applicant it would not give more time to obtain documents or supporting information, but that it was obliged to take into account any information received before a decision is made.

26. On 15 March 2024 the applicant gave the Tribunal a copy of his Statement of Academic Record (the Transcript) from Edith Cowan University (ECU) and letters from Downtown Investments Ltd, Zambia dated 20 August 2018 and 27 December 2018 purporting to certify the applicants employment between 27 August 2018 and 21 December 2018.

27. The Tribunal observes the Department’s records indicate the applicant did not leave Australia since first arriving in 2013. The Tribunal does not accept the letters from Downtown Investments Ltd accurately record work experience (the practicum) undertaken by the applicant in 2018 in Zambia because the applicant was located in Australia. Accordingly, the Tribunal attributes no weight to those documents supporting the applicant’s claim to have completed the practicum before November 2021. 

28. The Transcript indicates the applicant completed the regular units of the course in Semester 2 of 2020. The ECU website indicates the last examination in 2020 was on 20 November 2020.

29. The Transcript indicates the applicant completed the Engineering Practicum but does not indicate when that practicum was undertaken. Undated correspondence from Heidi, Senior Communications Officer at ECU, acknowledges the expected completion letter sent in April 2021 was not a formal completion letter and was issued based on his practicum credit not being delayed. Heidi confirms the applicants credit for ENS5111 was not processed until November, so the expected completion was not the date identified in April 2021.

30. The Tribunal accessed the ECU website and identified Unit ENS 5111 to be the Engineering practicum. The course outline indicates the assessment method for grading the Unit:          

ASSESSMENT

Grading Schema 4

Students please note: The marks and grades received by students on assessments may be subject to further moderation. All marks and grades are to be considered provisional until endorsed by the relevant Board of Examiners.

The Practicum is assessed as a pass or fail. The following minimum standards must be met in each of the individual components before a pass in the unit as a whole can be achieved:

Professional Development Log: Must be complete, with one report for each week of work.
Practicum Report: Must be complete, must be presented to a standard expected of a graduating engineer, and must cover the aspects as required for the report.
Employer Assessment Report: Must be completed, and have no more than two assessments of D or SD.
Practicum Certificate: Must be completed by both the student and the employer, and signed by the Supervisor.
Work Integrated Learning Risk Assessment Checklist: The relevant forms have to be completed and signed by the student and the host organisation.

Item	On-Campus Assessment
Practicum	Portfolio	Pass / Fail

1. The Tribunal notes the minimum standards required for the assessment and is not satisfied the letters from Downtown Investments Ltd, Zambia meet these minimum standards even they were genuine. The Tribunal finds the Engineering practicum is part of the academic component of the ECU course because it is assigned a Unit code and must be completed for the Engineering course to be completed.

2. The Tribunal prefers the evidence of the ECU Statement of Academic Record transcript confirming the applicant completed a Bachelor of Engineering (Civil) Honours which is a registered course (CRICOS code 083180D) on 25 November 2021.

3. The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

4. Therefore the applicant does not satisfy cl 485.231(3).

5. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231, 485.232 or 485.233. Therefore the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

   DECISION

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

   P. Maishman
   Member