Dorman (Migration)
[2021] AATA 3902
•29 September 2021
Dorman (Migration) [2021] AATA 3902 (29 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr George Dorman
CASE NUMBER: 1833239
HOME AFFAIRS REFERENCE(S): BCC2018/3106504
MEMBER:Michelle East
DATE:29 September 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 29 September 2021 at 2:28pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) - Post-Study Work stream – Australian study requirement – two academic years of relevant study – courses partially completed within 6 months before visa application – degree, post-graduate diploma or diploma courses – fee payment for Graduate Certificate – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231; rr 1.15, 2.26CASES
Bhatt v MIAC [2012] FCA 918
Bhatt v MIAC [2012] FMCA 317STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 October 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 August 2018. 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 includes cl 485.231.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made.
The applicant appeared before the Tribunal on 29 September 2021 to give evidence and present arguments. As the applicant was offshore the hearing was held by telephone.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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?
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.
With his application to the Department the applicant declared he had completed a Master of Petroleum Engineering from 29 February 2016 to 8 August 2018 and a partial completion of a Master of Chemical Engineering from February – June 2017.
A letter from the Head of School at Curtin University dated 31 October 2018 provided by the applicant states as follows:
This letter is to confirm that George Dorman has been enrolled in the Master of Chemical Engineering course and has completed 100 credits in the course. George is eligible to receive an intermediate award on this instance for Graduate Certificate in Chemical Engineering and has submitted his application for the same.
The applicant, in his accompanying statement said he hadn’t paid the fee to obtain the Graduate Certificate. The applicant confirmed in his oral evidence that he had still not paid the fee and therefore had not been awarded the Graduate Certificate.
A review of the Curtin University handbook details the CRICOS Code for the course is 038788A and the duration of the course as 0.5 years full-time. The Tribunal accepts that the applicant completed six months of his Master of Chemical Engineering which equated to a qualification for a Graduate Certificate.
The applicant’s submission is that the Masters degree combined with the Graduate Certificate in Chemical Engineering is sufficient to satisfy the Australian study requirement. That is, both courses were completed in at least 92 weeks or 2 academic years of Australian study.
For the applicant’s submission to be successful the Tribunal needs to consider whether his Graduate Certificate in Chemical Engineering is a ‘degree’, ‘post-graduate diploma’ or ‘diploma’ as defined by the Regulations, specifically r.2.26AC(6).
For the following reasons the Tribunal has decided it does not satisfy any of these definitions.
Subregulation 2.26AC(6) provides that diploma means:
(a) an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or
(b) a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.The Register of Australian Tertiary Education (RATE) (as current on 1 July 1999) provides that:
·an associate diploma aims to produce diplomates capable of working in support of professionals or working in an employment category at a similar level of performance to paraprofessional personnel; and
·a diploma is the initial qualification for professional practice.
The Australian Qualifications Framework (AQF) provides that a diploma is AQF Level 5 and an advanced diploma is AQF 6.
The RATE and the AQF classify an associate diploma, a diploma and an advanced diploma as undergraduate courses.
Subregulation 2.26AC(6) provides that degree means a formal educational qualification, under the AQF, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:
(a)the entry level to the course leading to the qualification is:
…….
(iv) in the case of a postgraduate diploma—satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and
…….
The terms ‘postgraduate’ and ‘graduate’ can be considered to be synonymous, and the AQF provides that a graduate diploma is AQF Level 8 and a postgraduate course.
The Tribunal is not satisfied in this matter that the Graduate Certificate which was completed by the applicant, is equivalent to any other qualification, including a Graduate Diploma. The Tribunal finds that the applicant completed a Master of Petroleum Engineering and arguably a Graduate Certificate in Chemical Engineering (noting that the applicant has not paid the fee for the Certificate and it has not been conferred).
In order to meet the Australian study requirement in r.1.15F, the applicant needs to have completed ‘1 or more degrees, diplomas or trade qualification for award…’. As stated in r.1.15F(2), ‘degree, diploma and trade qualification’ have the meanings given in r.2.26A(6).
In this matter, the applicant has completed a Graduate Certificate, not a Diploma. In Bhatt v MIAC [2012] FMCA 317[1] the Court held that a graduate certificate is not a ‘diploma’, ‘degree’ or ‘trade qualification’ as defined by subregulation 2.26AC(6).
[1] Upheld on appeal in Bhatt v MIAC [2012] FCA 918
In this matter the Tribunal cannot find any reason to distinguish that case and sees no basis for not following the reasoning and conclusions reached by the Court in that matter.
Therefore, the applicant needs to rely solely on his Master of Petroleum Engineering to satisfy the Australian study requirement. This course is registered on CRICOS as being for 78 weeks. The applicant is required to complete his study in at least 92 weeks or two academic years of Australian study.
Accordingly, cl 485.231(3) is not met.
On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. 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
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Michelle East
Member
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Jurisdiction
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