Evans (Migration)

[2017] AATA 1580

Evans (Migration) [2017] AATA 1580 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Dylan Warwick Edward Evans
Ms Erin M Beach

CASE NUMBER:  1708186

DIBP REFERENCE(S):  BCC2016/4067642

MEMBER:Katie Malyon

DATE:4 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.231(3) of Schedule 2 to the Regulations.

Statement made on 04 September 2017 at 7:26 pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Academic requirements met within 6 months immediately before visa application made

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.231

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 28 March 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 December 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 visas because the first named applicant, Dr Dylan Warwick Edward Evans, not satisfy cl.485.231 of Schedule 2 to the Regulations since, based on the letter dated 7 December 2016 from the University of Sydney he completed the requirements and was awarded the degree of Doctor of Dental Medicine at the University of Sydney on 7 December 2016, that is, 5 days after he lodged his Subclass 485 visa application rather than at some time in the 6 months before the application was lodged.  A copy of the delegate’s decision was provided to the Tribunal.

4. The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers pursuant to s.360(2)(a) of the Act having regard to material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Dr Evans is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations. These include that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3) of Schedule 2 of the Regulations.

6. The issue in this case is whether Dr Evans ‘completed’ his Doctor of Dental Medicine in the 6 months immediately before making his Subclass 485 visa application on 2 December 2016 as required by cl.485.231(3) of Schedule 2 of the Regulations.

   Does the applicant meet the Australian study requirement?

7. 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:

   (a)  that are registered courses; and,

   (b)  that were completed in a total of at least 16 calendar months; and,

   (c)   that were completed as a result of a total of at least 2 academic years study; and,

   (d)  for which all instruction was conducted in English; and,

   (e)  that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

8. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms: see r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. 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. 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.

9. Accompanying the application for review to the Tribunal, Dr Evans provided a letter dated 30 March 2017 signed by Professor Chris Peck, Dean of the Faculty of Dentistry at Sydney University.  In his letter, Professor Beck states:

   I write this letter as Dean of the Faculty of Dentistry, University of Sydney, to confirm that Dr Dylan Warwick Edward EVANS was confirmed as having successfully completed the requirements of the 4-year Doctor of Dental Medicine (DMD) degree by the Faculty’s Progression Committee on 23 November 2016 following the final examinations on 18 November 2016 and, on 2 December 2016, those results were uploaded onto his student record (emphasis added). 

10. The Tribunal has independently contacted Sydney University for confirmation of the details in Professor Beck’s letter.  It did so to clarify inconsistent information in the letter provided by the Registrar of Sydney University dated 7 December 2016 which states that Dr Evans ‘has completed the requirements and been awarded the Degree of Doctor of Dental Medicine as of 7 December 2016’.  This was confirmed to the delegate in a telephone conversation with a Student Compliance Officer of Sydney University on 20 January 2017.  Based on its enquiries of the same Student Compliance Officer, the Tribunal has established that all questions and evidence regarding completion of a student’s studies should be directed to the relevant faculty, in this case, the Faculty of Dentistry.     

    Consideration of evidence

11. The Tribunal has considered the requirements of cl.483.231(3) of Schedule 2 to the Regulations which requires the applicant to have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made.

12. As noted above, ‘completed’ in relation to a degree, diploma or trade qualification is defined to mean ‘having met the academic requirements for its award’.  This definition was considered in Sapkota v MIAC 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.[1]  The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.    

    [1] Sapkota v MIAC [2012] FCA 981, Cowdroy J at [26]

13. Based on the letter from Professor Beck dated 30 March 2017 and the Tribunal’s independent enquiries of the Student Compliance Unit, the Tribunal finds that Dr Evans completed the requirements to be awarded the Doctor of Dental Medicine degree on 23 November 2016.  This is within the 6 months immediately before the date his Subclass 485 visa application was made on 2 December 2016.

14. The Tribunal has reviewed the CRICOS Register for Sydney University’s Doctor of Dental Medicine course code 074120B, the course which Professor Beck and the Registrar of Sydney University confirm Dr Evans has completed. The CRICOS Register indicates that the duration of the Doctor of Dental Medicine course is 208 weeks (that is, more than 2 academic years) and, further, that all instruction is in English. Based on this evidence, the Tribunal is satisfied that Dr Evans meets the requirements of r.1.15F(1)(a), r.1.15F(1)(c) and r.1.15F(1)(d) of the Regulations.

15. Having regard to Dr Evans’ Confirmation of Enrolment in the Department’s file as well as the letters from Professor Beck and the Registrar of Sydney University, the Tribunal is satisfied that Dr Evans’ course was completed in a total of more than 16 calendar months. Accordingly, he meets r.1.15F(1)(b) of the Regulations.

16. The Department’s records confirm that Dr Evans’ held a Student visa valid from 9 January 2013 to 3 March 2017 authorising him to study while undertaking his Doctor of Dental Medicine at Sydney University. Accordingly, he meets r.1.15F(1)(e) of the Regulations.

17. Having regard to all of the evidence referred to above, the Tribunal finds that Dr Evans satisfies the Australian study requirement in the 6 months immediately before the date he lodged his Subclass 485 the visa application. Therefore, he meets cl.485.231(3) of Schedule 2 of the Regulations. In the circumstances, 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 applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.231(3) of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member