Deuja (Migration)

[2017] AATA 434

Deuja (Migration) [2017] AATA 434 (21 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kanchan Deuja

CASE NUMBER:  1606947

DIBP REFERENCE(S):  BCC2016/1057077

MEMBER:Jennifer Ciantar

DATE:21 March 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.485.231

Statement made on 21 March 2017 at 9:34am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post Study work stream – Bachelor of Professional Accounting – Qualification completed 6 months before application – Clerical error with completion date

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231, r 1.15F(1), IMMI 13/013

CASES
Sapkota v MIAC [2012] FCA 981

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 29 April 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 11 March 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.485.231 of Schedule 2 to the Regulations because the applicant did not complete her Bachelor of Professional Accounting qualification in the period of 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 16 March 2017 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post Study work stream which includes cl.485.231 of Schedule 2 to the Regulations. This requires that the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing (cl.485.231(1). It also requires that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (cl.485.231(2); and that the applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made. The issue in the present case is whether the applicant meets these requirements.

7. On the visa application form, the applicant states that she undertook a Bachelor of Professional Accounting at Holmes Institute from 17 March 2014 to 10 March 2016. However, the applicant provided the Department with her academic transcript, which states that the applicant completed the Bachelor of Professional Accounting on 11 March 2016, and a letter from Holmes Institute, dated 11 March 2016, which states the applicant undertook a Bachelor of Professional Accounting from 17 March 2014 to 11 March 2016.

8. The delegate found that the applicant had completed her degree on 11 March 2016, which is the same day she lodged the visa application.

9. After the Department refused the application, the applicant provided the Department with copies of her results (from her phone) which indicate that her last academic results were sent to her on 10 March 2016. The applicant also provided a letter from Holmes Institute dated 10 May 2016, which states the applicant undertook a Bachelor of Professional Accounting from 17 July 2014 and concluding on 10 March 2016. She was deemed eligible to graduate with the award by the Board of Examiners on 10 March 2016.

10. On 3 March 2017 the Tribunal wrote to the Executive Dean, Faculty of Higher Education, Holmes Institute, and sought advice about the commencement and completion dates of the course undertaken by the applicant, given that Holmes Institute has provided a letter from the Dean which indicates that the completion date was 11 March 2016 and a letter from the Registrar which states that the completion date was 10 March 2016. 

11. In response, Holmes Institute provided a letter from the Executive Dean which states that the completion date was 10 March 2016 and a letter from the Campus Director, Melbourne, which states that the completion date was 11 March 2016. The Tribunal again contacted Holmes Institute to seek clarification.

12. On 15 March 2017 the applicant provided further documents to the Tribunal including an Academic Transcript which states that the applicant completed the Bachelor of Professional Accounting on 10 March 2016, and a letter from Andy Liang, Student Records, Holmes Institute, which states that the applicant undertook the Bachelor of Professional Accounting from 17 March 2014 to 10 March 2016.

13. At hearing, the applicant told the Tribunal that she had been given credit by Holmes Institute for 8 subjects she undertook in a Diploma of Business, which she successfully completed on 29 November 2013. She had attended the Holmes Institute campus in Melbourne from 2014 to 2016 and then moved to Sydney. She has not been able to obtain an explanation as to why Holmes institute gave 2 different completion dates. However, she has now provided the Tribunal with a letter and a transcript which give the completion date as 10 March 2016.

14. On 16 March 2017 Dr Anja Michaela Fladrich, Dean Operations, Faculty of Higher Education, Holmes Institute, advised the Tribunal that her previous email of 3 March 2017 was correct and the applicant was enrolled in her degree from 17 March 2014 until 10 March 2016. She apologised for the confusion and clerical error.

    Does the applicant meet the Australian study requirement?

15. 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.

16. ‘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.

17. Regulation 1.15F(2) defines the ‘completion’ of a degree, diploma or trade qualification as follows:

    (2)  In this regulation:

    "completed , in relation to a degree, diploma or trade qualification, " means having met the academic requirements for its award.

    Note:          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 subregulation (2), before the award is formally conferred.

18. This definition was addressed in Sapkota v MIAC [2012] FCA 981, where Cowdroy J held the relevant date for determining when a student has completed the academic requirements is the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the institution. The date of submission of the final piece of assessment is not the relevant date, and nor is the date when the institution informs the student of the results.

19. The Tribunal has considered material on the Holmes Institute website and the Tribunal finds that the applicant’s Bachelor degree is a qualification of a kind specified by the Minister in the relevant instrument in writing, IMMI 13/013, which nominates the following qualifications for the purposes of cl.485.231(1): Bachelor Degree; Bachelor (Honours) Degree; Masters by Coursework Degree; Masters by Research Degree; Masters (Extended) Degree and/or; Doctoral Degree. Therefore cl.485.231(1) is met.

20. Having considered the requirement of cl.485.231(2), the relevant instrument, IMMI 13/031, and information from the Holmes Institute website, the Tribunal finds that the qualification was conferred or awarded by an educational institution specified by the Minister. The written and electronic material from the Holmes Institute regarding the Bachelor course completed by the applicant, confirms the course is a registered CRICOS course. Therefore cl.485.231(2) is met.

21. The Tribunal has next considered whether cl.485.231(3) is met, which requires the applicant’s study for the qualifications or qualifications to have satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

22. The Tribunal is now satisfied, on the basis of the letter from Holmes institute, dated 16 March 2017, and the academic transcript provided to the Tribunal by the applicant, that the applicant completed her Bachelor of Professional Accounting on 10 March 2016, that is, in the period of 6 months ending immediately before the visa application was lodged on 11 March 2016.

23. Information provided by Holmes Institute dated 16 March 2017 confirms that the applicant completed the Bachelor of Professional Accounting on 10 March 2016 and she had commenced the course on 17 March 2014. The website of Holmes Institute confirms that the degree is taught in English and normally takes 156 weeks to complete. The applicant was given credit for 8 subjects and completed the course in less than 156 weeks but the Tribunal is satisfied that the qualification was obtained as the result of study that was undertaken over 104 calendar weeks and 2 academic years. The instruction for the course was in English.

24. The Department’s records indicate that the applicant held a Subclass 573 visa from 28 February 2013 to 15 March 2016 and the Tribunal is satisfied that the applicant held a visa that authorised her to study while she undertook the Bachelor of Professional Accounting.

25. On the basis of these findings the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.231(3), and the Tribunal further finds that he requirements of cl.485.231 are met.

26. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

27. 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.

    Jennifer Ciantar
    Member