GITUNGO (Migration)

GITUNGO (Migration) [2019] AATA 2325 (25 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss GRACE NJANJA GITUNGO
CASE NUMBER:  1728334
HOME AFFAIRS REFERENCE(S):           BCC2017/3196987
MEMBER:Jennifer Cripps Watts
DATE:25 March 2019
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 of Schedule 2 to the Regulations.

Statement made on 25 March 2019 at 1:43pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – transferred to another course – recognised prior learning – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC; Schedule 2, cl 485.231
CASES
Riaz v MIBP [2013] FCCA 224
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 November 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 September 2017. 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 (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 include 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 met the Australian study requirement.
The Tribunal reviewed the decision and information contained in both the Tribunal and Department files and is satisfied that the applicant meets the requirements of r.485.231. On that basis, a decision has been made on the papers. There was no need for a hearing as the matter is being remitted. Reasons for the decision are given below.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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, which specifies the following qualifications:
(a)Bachelor Degree;
(b)Bachelor (Honours) Degree;
(c)Masters by Coursework Degree;
(d)Masters by Research Degree;
(e)Masters (Extended) Degree and/or;
(f)Doctoral Degree.
In support of the Subclass 485 visa application that is the subject of this review the applicant is relying on her Master of International Studies Advanced from the University of Wollongong, completed on 5 July 2017. This qualification is specified in the relevant instrument.
Accordingly, cl.485.231(1) is met.
Was the applicant’s qualification conferred or awarded by a specified educational institution?
Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031 that specifies for the purposes of cl.485.231(2) that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offer courses at degree level and above.
The Tribunal has confirmed that the University of Wollongong is a CRICOS registered provider: CRICOS code 00102E.
In this case, the Tribunal is satisfied the applicant’s qualification was conferred or awarded by an educational institution specified in the relevant instrument.
Accordingly, cl.485.231(2) is met.
Does the applicant’s study for the specified qualification meet the Australian study requirement?
Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.
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,
·that were completed in a total of at least 16 calendar months,
·that were completed as a result of a total of at least 2 academic years study,
·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.
‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). 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 (ESOS): IMMI 09/040.
The applicant’s Master of International Studies Advanced from the University of Wollongong, completed on 5 July 2017, is registered on the CRICOS for 104 weeks. The applicant originally commenced a Master of International Studies at the University of Wollongong in early 2015, which was a course of 78 weeks’ duration. She completed 40 units of study.
In September 2015, the applicant transferred, on the advice of the university so that she may meet the 2 years’ study requirement and be eligible to apply for a post-study visa, to the 104 weeks’ CRICOS registered Master of International Studies Advanced. The 40 units of study from the first (78 weeks) Masters degree were credited to the second (104 weeks) Masters degree. The Tribunal is satisfied that both courses are Australia Qualifications Framework (AQF) level 7, as defined in r.2.26AC(6).
On the issue of recognised prior learning, or credits for the completion of a qualification, relevant in this case, the Court, in Riaz v MIBP [2013] FCCA 224, held that ‘study’ in r.1.15(1)(c) denotes the activities educational institutions prescribe for the award of a degree, diploma or trade qualification and it is for those institutions to specify what is required for a person to complete a course that will result in the conferral of a relevant qualification, including the recognition of prior learning and course credits. Accordingly, the relevant question for r.1.15F(1)(c) is whether an applicant for the visa had ‘completed’, as defined in r.1.15F(2), a course or courses that had been registered under the ESOS Act as having a duration of at least 92 weeks.
The Tribunal has had regard, relevantly, to the letter of completion from the University of Wollongong, dated 15 August 2017, that the applicant provided with her visa application. It states that the applicant, Grace Njanja Gitungo student number 5028140, completed the Master of International Studies Advanced on 5 July 2017 and graduated on 19 July 2017.
The applicant completed the relevant course on 5 July 2017 and applied for the visa that is the subject of this review about two months later, on 4 September 2017.
For the reasons given above, the Tribunal is satisfied that the applicant completed a degree, diploma or other trade qualification in the 6 months immediately before the application was made. The Tribunal is satisfied that she completed the specified qualification as a result of a course:
a.that was a registered course (as defined: see r.1.03); and
b.as defined in r.1.15F(2), she completed it in a total of at least 16 calendar months - and as a result of at least 2 academic years (as specified) study - the applicant commenced the Masters of International Studies Advanced on 29 February 2016 and completed it on 30 July 2017 (17 months, not counting the credits from the previous Masters course); and
c.for which all instruction was conducted in English – as confirmed in the letter of completion; and
d.completed while the applicant held a visa authorising study – Departmental records indicate she held a Subclass 573 student visa during the relevant period.
The Tribunal finds that the applicant’s study for the specified qualification satisfies the Australian study requirement in the 6 months immediately preceding the date of the visa application.
Accordingly, cl.485.231(3) is met..
On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
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 of Schedule 2 to the Regulations.
Jennifer Cripps Watts
Member

[2019] AATA 2325

25 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Procedural Fairness