Hardeman (Migration)

[2021] AATA 607

Hardeman (Migration) [2021] AATA 607 (28 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Jill Nicole Hardeman

CASE NUMBER:  2005487

HOME AFFAIRS REFERENCE(S):          BCC2019/6381431

MEMBER:R. Skaros

DATE:28 January 2021

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 28 January 2021 at 4:24pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – studies completed in the 6 months before the visa application – evidence from the education provider – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26; 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 Home Affairs on 18 March 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 November 2019. 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.

3. The delegate was not satisfied the evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application as required by cl.485.231.

4. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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 Doctor of Medicine   which is a qualification specified in that instrument. Accordingly, cl.485.231(1) is met.

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

8. 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.

9. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland, which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offers courses at degree level and above, and which is therefore an educational institution specified in that instrument. Accordingly, cl.485.231(2) is met.

   Does the applicant meet the Australian study requirement?

10. 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.

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,

    ·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.

12. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.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: LIN 19/085.

13. The applicant provided evidence to the Department that the degree was conferred on 10 December 2019. However, this does not represent the date that she satisfied the requirements for the award of the degree as required by r.1.15F, and the applicant did not provide an official completion letter as requested by the Department. As such the delegate was not satisfied that she completed the degree in the period of 6 months ending immediately before the day the application was made and was not satisfied that she met the requirements of cl.485.231.

14. The Tribunal has before it additional evidence which was not before the Department. The applicant has provided a letter from the University of Queensland, correct as of 10 July 2020, stating that: she commenced the course on 29 February 2016; satisfied the course requirements on 28 November 2019; and was awarded the degree on 10 December 2019.The Tribunal finds on the evidence before it that the applicant completed the course within the meaning of r.1.15F, on 28 November 2019, within the period of 6 months ending immediately before the date the application was made.

15. Further evidence before the Tribunal confirms that the course was registered on CRICOS as requiring 208 academic weeks of study, the applicant completed it over a period of I45 calendar months and it was conducted in English. The applicant completed the course in Australia, while holding a subclass 573 student visa, permitting her to undertake the relevant study.

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

    ·the applicant's Doctor of Medicine, a degree within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·the course was a CRICOS registered course:

    ·the course was completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the applicant completed the course in Australia, while holding a subclass 573 visa authorising her study in Australia

17. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, cl.485.231(3) is met.

18. 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

19. 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.

    R. Skaros

    Senior Member