Dang (Migration)

[2017] AATA 1371

Dang (Migration) [2017] AATA 1371 (10 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Dang

CASE NUMBER:  1607220

DIBP REFERENCE(S):  BCC2016/264242

MEMBER:Alison Mercer

DATE:10 August 2017

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.485.221; and

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 10 August 2017 at 2:04pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement –  Completed course 6 months immediately preceding visa application date

LEGISLATION

Education Services for Overseas Students Act 2000, s 9

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.221, cl 485.222, r 1.03, r 1.15F, r 2.26AC(6)

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 18 May 2016 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 18 January 2016. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations. The delegate found that the applicant did not meet the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made, as the evidence provided indicated that he completed a Bachelor of Engineering (Honours) (Mining) on 29 February 2016, after he had made his visa application on 18 January 2016.

4. The Tribunal received a review application from the applicant on 20 May 2016, which was accompanied by a copy of the delegate’s decision and a statement dated 18 May 2016 from the applicant in which he indicated that he actually finished his studies in November 2015 and he thought that he could lodge his visa application at that point, although he had not yet received a letter of completion from the University of Adelaide.  He stated that he did not know that he would not officially graduate until 29 February 2016, and that he did not understand how applying for the visa early was such a problem.  Also attached was a letter dated 9 March 2016 from the University of Adelaide stating (amongst other things) that the applicant completed the requirements for the Bachelor of Engineering (Honours) (Mining) with Third Class Honours on 29 February 2016 and that the qualification was conferred on 9 March 2016.

5. On 22 June 2017, the Tribunal wrote to the applicant to invite him to attend a telephone hearing on 12 July 2017.  He was asked to provide any further information he wished to rely upon in support of his case.

6. On 26 June 2017, the applicant sent a response indicating that he would attend the Tribunal hearing.  He also provided a copy of his official academic transcript from the University of Adelaide, issued 16 March 2016, which states that the qualification was conferred on 9 March 2016.

7. Due to an administrative error, the Tribunal was not able to conduct a hearing with the applicant on 12 July 2017, and, with his consent, the hearing was rescheduled to 26 July 2017.  The applicant participated in a telephone hearing with the Tribunal on 26 July 2017.

8. The applicant told the Tribunal that he received his results in November 2015, as he had passed all of his exams. He therefore thought he could lodge his subclass 485 visa application, but then when he got the letter of completion from the University of Adelaide, it gave 29 February 2016 as his completion date.  However, his transcript indicated that he had completed his subjects by the end of 2015.  The Tribunal discussed with the applicant its view that, in the absence of an official letter of completion being reissued by the University of Adelaide with an earlier date, the Tribunal could not form its own view based on the transcript that the applicant had completed the requirements for the award of his degree earlier than 29 February 2016, as it was up to the education provider to certify this and the Tribunal could not look behind the completion date in a letter issued by an education provider.  It agreed to defer its decision until 9 August 2017 to enable the applicant to obtain (if possible) another letter of completion from his University reflecting the fact that he had completed the requirements to be awarded the degree prior to 29 February 2016 as he claimed.

9. On 2 August 2017, the Tribunal received a scanned copy of a letter of completion issued by the University of Adelaide on the same date.  The letter confirms that the applicant completed his Bachelor of Engineering (Honours) (Mining) and fulfilled the academic requirements of this degree on 14 December 2015; however, as he had additional assessment for 1 course in his final semester (MINING 4111 Coal Mine Design & Feasibility), his official completion on the University system was delayed until the Summer Conferral round of the following year. The letter further states that as completion and conferral deadlines are controlled by central university processes, the applicant’s official completion date is reflected in the official University records as 29 February 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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?

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; 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.

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, ‘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).

14. The Tribunal is satisfied that the applicant completed a Bachelor degree, as defined in r.2.26AC(6), at the University of Adelaide, and based on the letters of completion and information on the Department of Education’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website, it is further satisfied that this course is a registered course that was completed by the applicant in at least 16 calendar months and at least 2 academic years (its duration being at least 92 weeks), and that it was conducted in English. The Tribunal is further satisfied from the applicant’s movement records that he held subclass 571 and 573 student visas while undertaking this course. The Tribunal finds that the applicant therefore satisfies the Australian study requirement in r.1.15F.

15. The issue in relation to this requirement is whether the applicant completed the Australian requirement in the 6 months immediately preceding the day the visa application was made, as required by cl.485.221. Based on the original letter of completion dated 9 March 2016, the delegate found that the applicant did not meet this requirement, as he applied for his visa on 18 January 2016 but the letter of completion he provided states that he completed the requirements for his degree on 29 February 2016.

16. Since then, the applicant has provided a new letter of completion from the University of Adelaide, dated 2 August 2017, which states that he fulfilled the academic requirements for the degree on 14 December 2015 but there was a delay with his completion being recorded on the University’s system with the result that it was recorded that he completed the degree on 29 February 2016.

17. As noted above, r.1.15F(2) states that ‘completed’ means having met the academic requirements for the award of a degree, diploma or trade qualification. The note to that subparagraph states that this is different from the date of conferral of the degree, which would generally occur after an applicant had met the academic requirements for the award of the qualification in question.

18. On this issue, the Department’s Procedures Advice Manual (PAM3), which provides policy guidance to decision-makers, states as follows:

    Meaning of completed courses

    Met the academic requirements for award (conferral)

    Completed is defined in regulation 1.15F(2) to mean having met the academic requirements for the award of the degree, diploma or trade certificate.

    As indicated in the accompanying note in the regulation, the academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification for the purposes of reg 1.15F(2) before the award is formally conferred.

    The critical date

    The critical date is the date on which the results of the student’s final exams or of completion of the course were available or published – as the below examples illustrate:

    ·a letter to the student regarding their final exam results

    ·notification on the Internet

    ·notification in the newspaper

    ·notification on the university bulletin board.

    The date the results are made available or published is relevant because from this date the assessing bodies can undertake a skills assessment. Although the degree certificate generally shows the date of award or conferral, that information is not applicable in this instance. This is because the evidence that is required is the date of completion of the course, not the date of conferral of the degree.

    The completion date of an applicant’s Australian studies is also relevant to case officers’ assessments because applicants must have completed their qualification in the 6 months immediately before having applied in Australia for a 485 or a GSM visa.

Example:

The transcript states:

“admitted to the degree of Bachelor of Commerce on 18 May”

and the applicant claims in their visa application that the degree

was conferred on this date. However, it is quite likely that the qualification was completed the preceding November/December. The applicant would need to show that they in fact completed the degree on 18 May rather than it having been conferred on that date (for example, they had supplementary exams).

Presentation of thesis is not enough

An applicant cannot be considered by the Department to have completed their course by simply having presented their thesis. If the student has only submitted a thesis as part of a course requirement, it cannot be said that they have successfully fulfilled all course components. There may be the possibility of further work or amendments before all requisite course components can be considered to have been completed.

Transcripts and other evidence

A student may be asked to provide an academic transcript as evidence of the date of completion. This however, may not be enough to prove completion as the student’s academic transcript may only include the date of conferral. Given this, a decision maker may ask the student to provide other evidence which may include a letter from the institution confirming the date of completion. A letter confirming the date of completion may be used by certain assessing bodies to determine the date of completion instead of a transcript. If the student is asked to provide a letter from the institution to confirm the date of completion, decision makers must be careful not to confuse the date of completion with the date of conferral.

For instance; if the student:

·had their degree conferred in May and

·made their visa application in August

unless they sat a supplementary exam in the preceding January/February or had a thesis marked over the Christmas break, and can provide evidence of this, they may have not met the Schedule 1 threshold requirement relating to having Completed their qualification in the 6 months immediately before lodging an application for the visa.

1. The Tribunal notes that it would generally follow Departmental policy where that policy is relevant to the criterion in dispute and where it does not have the effect of imposing a higher test on applicants than the plain wording of the underlying legislation itself.

2. In this case, it appears from reading the 2 letters of completion issued by the University of Adelaide on 9 March 2016 and 2 August 2017 respectively that the applicant’s completion date was not formally recorded or notified to him through the University’s central records until February 2016, after he had made his subclass 485 visa application. However, the second letter of completion clearly states that the applicant fulfilled the academic requirements of the degree on 14 December 2015. As this is consistent with the plain wording of r.1.15F(2), the Tribunal is on balance satisfied that this earlier date is the relevant date for the purposes of r.1.15F(2), notwithstanding the official University records reflecting the completion date as 29 February 2016. As 14 December 2015 is in the 6 month period immediately before the applicant made his visa application on 18 January 2016, the Tribunal finds that he did meet the Australia study requirement in the 6 months immediately preceding the day the visa application was made, and therefore meets cl.485.221.

3. To the extent that the above extract from PAM3 indicates that the date of publication of the results should be taken to be the correct date, the Tribunal considers that this goes beyond the plain wording of r.1.15F(2), which simply states that ‘completed’ means having met the academic requirements for the award of the relevant qualification.

   Is the qualification ‘closely related’ to the nominated occupation?

4. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060.

5. In this case, the applicant nominated the occupation of Mining Engineer (excluding Petroleum) (ANZSCO code 233611) which is a skilled occupation specified in IMMI 16/060.  The Tribunal is satisfied that the applicant has completed a Bachelor of Engineering (Honours) (Mining) and is further satisfied, from the nature of the course and the subjects listed in the applicant’s academic transcript, that this qualification is closely related to his nominated skilled occupation.

6. Accordingly, the Tribunal finds that the applicant meets cl.485.222.

7. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

8. 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; and

   ·cl.485.222 of Schedule 2 to the Regulations.

   Alison Mercer
   Member