Filivao (Migration)

[2018] AATA 1099

Filivao (Migration) [2018] AATA 1099 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lasieli Latu Filivao
Mr Sione Katoa Filivao
Mr Taike Taulangovaka Filivao
Mr Longoaalupe Huasini Filivao
Mr Silongo-A-Vavau Filivao
Mr Falangike Tevita S. Filivao

CASE NUMBER:  1620759

DIBP REFERENCE(S):  BCC2016/3079191

MEMBER:Kate Millar

DATE:19 March 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 19 March 2018 at 1:11pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Recent study requirement – Course completed more than 6 months from application date

LEGISLATION
Migration Act 1958, s 54
Migration Regulations 1994, r 1.15F, Schedule 2 cl 485.231

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 November 2016 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 16 September 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 (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because she did not meet the requirement that her study met the Australian study requirement in the period of 6 months immediate before the day the application was made.

4. The applicants appeared before the Tribunal on 14 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Filivao’s sister, Ms Lupi Ikahihifo. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 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 for this subclause.

7. The Minister has specified in IMMI13/013 the qualifications of Bachelor degree, Bachelor (Honours) degree, Masters by coursework, Masters by Research, Masters (Extended), and /or Doctoral degree.

8. The applicant holds a Graduate Diploma of Management.  This is not a qualification specified by the Minister and has not been considered further.  The applicant also holds a Master of Professional Accounting.  This is a qualification specified by the Minister, and meets 485.221(2).

9. The second requirement is that the qualification was conferred by an educational institution specified by the Minister in an instrument in writing.  The Minister has specified in IMMI13/031 that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses.  Ms Filivao studied the Masters in Professional Accounting at the University of South Australia which is an educational institution specified by the Minister.

10. The third requirement is that the study for the qualifications satisfied the Australian study requirements in the period 6 months ending immediately before the day the application was made.

11. 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.

12. The only qualification that can be considered in determining if the Australian study requirements are met is the Masters in Professional Accounting.  According to her academic transcript, this was completed by Ms Filivao in 2015.  The Masters of Professional Accounting completed by Mrs Filivao meets the Australian study requirement as she has completed it, it was a registered course, it was completed in over 16 calendar months and two academic years (92 weeks), the instruction was in English, and it was undertaken while she held a visa authorising her to study. 

13. The delegate found this requires that the course has been completed in the six months immediately before the day the application was made.  Mrs Filivao seeks to rely on studies she completed more than 6 months before the ay the application was made. 

14. Clause 485.231(3) requires that the applicant’s study for the qualification satisfied the Australian study requirement in the period 6 months ending immediately before the visa application was made.  It is arguable that this does not mean competed courses can be relied on, as a person who has completed a course is no longer studying that course.  

15. The Subclass 485 visa was introduced by the Migration Amendment Regulations 2007 (No. 7).  The explanatory memorandum to these amendments states that the Regulations amend the Principle Regulations to:

    Introduce a new temporary visa for graduates who have recently completed studies in Australia, to provide them with additional time to gain skilled work experience in Australia or improve their English skills to allow them to apply for permanent GSM [General Skilled Migration] or employer-sponsored visa at any time.

16. As the explanatory memorandum refers to recent graduates, this favours an interpretation of cl.485.231 that the study referred to in that clause is recent study undertaken by the person, and not study undertaken at any time in the past. As such, I have concluded that the study in cl.485.231(3) must be study undertaken in the 6 months immediately before the visa application was made.

17. Mrs Filivao’s study towards the Masters of Professional Accounting was not undertaken in the 6 months immediately before the application day, and this qualification cannot be used be used to satisfy the Australia study requirement. As a result, she does not meet cl.485.231 of Schedule 2 of the Regulations.

18. As Mrs Filivao does not meet cl.485.231, the decision in relation to her is affirmed. As Mrs Filivao does not meet the primary criteria for the grant of the visa, the remaining applicants do not meet the secondary criteria in cl.485.311, and the decisions in relation to each of the secondary applicants is affirmed.

19. This is not to overlook Mrs Filivao’s circumstances.  She and her sister both gave evidence about the difficulties she has faced, including separation from her husband, family conflict and parenting responsibilities for her four children while pregnant with her fifth child. Mrs Filivao said that her extended family are mostly in Australia, and she also has caring responsibilities for her mother.

20. The Regulations do not allow the discretion to consider Mrs Filivao’s circumstances in deciding whether she meets the requirements in cl.485.231. If Mrs Filivao would like her circumstances taken into account, she may seek the intervention of the Minister.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Kate Millar
    Member