Gnanapragasam (Migration)

[2023] AATA 1302

Gnanapragasam (Migration) [2023] AATA 1302 (8 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Esther Smiley Gnanapragasam

CASE NUMBER:  2113446

HOME AFFAIRS REFERENCE(S):          BCC2020/619443

MEMBER:Nicola Findson

DATE:8 May 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 08 May 2023 at 11:44am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – qualification completed within 6 months before application made – academic transcript dated before application made and letter of completion dated after – email from university confirming completion – delay in uploading information to university’s system – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363B, 379A(5)
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC(6), Schedule 2, cl 485.231(3)

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 Home Affairs on 15 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 February 2020. Visa Class VC contains Subclass 485. 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231(3) of Schedule 2 to the Regulations, which required that she met the Australian study requirement in the 6 months immediately before she made her subclass 485 visa application. The delegate found that the applicant stated in her visa application that she completed her Master of Community Development degree at Murdoch University on 27 February 2020; however, the letter of completion issued to her by the University stated that it was 6 April 2020. The delegate preferred the evidence in the letter of completion and found that she had not completed her degree in the 6 months immediately before 29 February 2020. She therefore, did not satisfy cl 485.231(3) and did not meet cl 485.231 as a whole.

4. The Tribunal received a review application from the applicant on 3 October 2021.  It was accompanied by a copy of the delegate’s decision. 

5. On 17 March 2023, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a telephone hearing on 6 April 2023.  The invitation stated that if she did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

6. On 5 April 2023, the applicant sought a short postponement of her hearing, for medical reasons, and provided evidence in support of her request. The Tribunal agreed to postpone the hearing and rescheduled it to 20 April 2023 at 10:30am (WA Time). 

7. In anticipation of her rescheduled hearing, on 19 April 2023 the applicant provided the Tribunal with a detailed written submission in support of her claim to have satisfied the Australian study requirement in the 6 months immediately before she made her visa application.  In her submission, the applicant explained that she had completed the requirements of a Master of Community Development (by coursework) degree in February 2020, and had contacted her education provider, Murdoch University, to seek clarification around her course completion date.  She explained that she had been told over the telephone that while she had completed her course by February 2020, there was a delay in uploading the information to the University’s system because she had opted to attend a graduation ceremony in September 2020. The applicant explained that she was awaiting an amended letter confirming she had completed her course in February 2020, from Murdoch University.  The applicant also provided an academic transcript, issued on 26 February 2020, reflecting that she had completed the required units of her course; and a letter of reference prepared by Ms Maria Daniel, Co-founder of Fount of Life Sanctuary, an organisation the applicant had undertaken a voluntary practical work placement with during her studies.

8. However, the applicant did not appear before the Tribunal on the day and at the scheduled time.   At 11:36am (WA Time) the applicant did contact the Tribunal and explained to a Tribunal Officer that she had mistakenly misinterpreted the hearing time.  She also indicated she would like to proceed with a hearing.

9. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), that SMS reminders were sent to the review applicant about the hearing, and that Tribunal Officers unsuccessfully made attempts to contact the review applicant at the time of the scheduled hearing. In these circumstances, and pursuant to s 362B of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

10. The Tribunal did, however, write to the applicant and invite her to provide any additional evidence in relation to the requirement of cl 485.231(3) before 5 May 2023.

11. On 2 May 2023, the applicant provided to the Tribunal email correspondence dated 27 April 2023, from Murdoch University confirming that the applicant had completed the final requirements of her course in the summer 2019 teaching period (which officially ended on 31 January 2020) and that final results were released for this period on 24 February 2020.  The correspondence also set out that the ‘Nominated Completion Date’ of the applicant in the University’s system was incorrectly set to mid-2020 (and as a result she was not identified as an intending graduate at the end of the summer teaching period) and that this is why the Confirmation of Completion of Studies letter issued on 28 April 2020 states the completion date as being 6 April 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Clause 485.231 of Schedule 2 to the Regulations 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 application was made. The issue in the present case is whether the applicant meets these requirements.

    Does the applicant hold a specified qualification?

14. 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. In this case, the applicant holds a Master of Community Development degree by coursework which is a qualification specified in that instrument.

15. Accordingly, cl 485.231(1) is met.

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

16. 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.

17. In this case, the applicant’s qualification was conferred or awarded by Murdoch University in Western Australia, which is an educational institution specified in that instrument, as it is listed in the Commonwealth Register of Institutions and Courses for Overseas Students and offers courses at degree level and above.

18. Accordingly, cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

19. 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.

20. Under reg 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.

21. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.

22. The applicant provided to the Department evidence, including Confirmation of Completion of Studies letters issued by Murdoch University, that she had successfully completed a Master of Community Development (by coursework) degree at Murdoch University, and before that a Graduate Diploma in Community Development.

23. The applicant provided to the Department a letter of completion issued by Murdoch University to evidence she had successfully undertaken a Master of Community Development degree.  The letter indicated that the course was completed by the applicant on 6 April 2020. Relying on the letter the delegate considered that the applicant had completed her course after lodging the visa application and found that she had not satisfied the Australian Study Requirement in the period of 6 months immediately before the day the application was made as required by cl 485.231(3).  The delegate concluded that the applicant did not meet cl 485.231 as required for the grant of the visa.

24. The applicant has provided the Tribunal with updated correspondence from the education provider, including an email dated 27 April 2023, clarifying that the applicant completed the final unit of her Master of Community Development degree in Summer 2019, which teaching period officially ended on 31 January 2020, and that final results were released for this period on 24 February 2020. 

25. On the basis of the evidence now before it, the Tribunal accepts that the applicant completed the requirements for the course on 24 February 2020, which is within the period of 6 months immediately before the day the application was made.

26. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

    ·The applicant’s Master of Community Development (by coursework), a Degree within the meaning of r 2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·The applicant’s Master of Community Development degree and Graduate Diploma in Community Development are CRICOS registered courses;

    ·The applicant’s courses were completed in a total of at least 16 calendar months and as a result of at least 2 years academic study, between 27 February 2017 and 24 February 2020;

    ·All instruction was in English; and

    ·The courses were conducted in Australia while the applicant held a visa authorising study in Australia.

27. The Tribunal finds that the applicant’s study for the specified qualifications satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

28. Accordingly, cl 485.231(3) is met.

29. 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

30. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.23 of Schedule 2 to the Regulations.

    Nicola Findson
    Member