Kariuki (Migration)

[2021] AATA 1317

Kariuki (Migration) [2021] AATA 1317 (5 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Joy Wangechi Kariuki

CASE NUMBER:  1813292

HOME AFFAIRS REFERENCE(S):          BCC2018/1146629

MEMBER:Kira Raif

DATE:5 March 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 05 March 2021 at 5:54pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –applicant holds  a specified qualification –  combination of two courses was completed as a result of at least 92 weeks of study – Australian study requirements met – qualification is a registered course– decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.231

CASES
Riaz v MIBP [2013] FCCA 224

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 20 April 2018 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 10 March 2018. The delegate refused to grant the visas because the delegate was not satisfied that the study completed by the applicant satisfied the Australian Study Requirement as required in cl.485.231 of Schedule 2 to the Regulations. The applicant is seeking review of the delegate’s decision.

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

   Relevant law

4. 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.

5. 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?

6. 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 Professional Accounting and a Master of Business Administration which are qualifications specified in that instrument. Accordingly, cl.485.231(1) is met.

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

7. 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.

8. In this case, the applicant’s qualification was conferred or awarded by Holmes Institute 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?

9. 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.

10. 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.

11. ‘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: LIN19/085.

12. In this case, the CRICOS website indicated that a Master of Professional Accounting (MPA) and Master of Business Administration (MBA) undertaken at Holmes Institute had a total course duration of 156 weeks providing the courses were completed consecutively. However, as the applicant completed the qualifications concurrently, the delegate concluded she had engaged in a total of 78 weeks of study. The delegate was not satisfied the applicant had completed 2 academic years of Australian study, as required by cl.485.231.

13. The Tribunal is mindful that the 2 year study requirement can be met by completing more than one qualification. There is nothing in the legislation stating that the courses cannot be completed concurrently or must be done consecutively. The Tribunal also notes that Department Policy in PAM3 states that where an applicant is using more than one course to meet the Australian study requirement, the courses must have a total registered duration of at least 92 weeks. In this case, the applicant completed two distinct qualifications, a Master of Professional Accounting and a Master of Business Administration. The two qualifications were separately registered on CRICOS as each being of 78 weeks duration. As the two qualifications were registered separately on CRICOS, and can be completed independently, the Tribunal is satisfied that the two qualifications can each contribute towards the 2 year study requirement.

14. The Tribunal has also had regard to a document provided by Holmes Institute in another matter, the circumstances of which were similar to the present case. In that case (Tribunal reference 1730108), the Tribunal received advice from Holmes Institute regarding the structure of the Master of Business Administration and Master of Professional Accounting, when undertaken together. The following advice was provided by Holmes College in writing:

    Students do not always complete their two degrees consecutively as per the
    prescribed study plan and may undertake an irregular enrolment undertaking subjects
    from both degrees resulting in the same completion date. However, the student will
    have met the requirement for both awards having completed 16 subjects and studied
    in excess of the 92 CRICOS weeks required

15. The Tribunal acknowledges that the applicant completed mostly the same subjects to obtain the two qualifications. However, as long as the two courses are registered as being a total of at least 92 weeks duration, and were completed or met the academic requirements for award of the degrees, recognition of prior learning or credits granted are a matter for the education provider in deciding what is required for a person to complete a course for conferral of the qualification (Riaz v MIBP [2013] FCCA 224). As such, the Tribunal is satisfied that the combination of two courses was completed as a result of at least 92 weeks of study.

16. In a letter dated 9 March 2018 the education provider confirmed that the applicant commenced the course on 11 July 2016 and satisfied the requirements for the award of the course on 9 March 2018. This demonstrates that the applicant completed the course in over 19 calendar months. The education provider also confirmed that the programs were delivered in English. Evidence before the Tribunal demonstrates that the courses were conducted in Australia and the applicant held a subclass 573 visa, permitting her to undertake the relevant study during this period.

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

    ·the applicant's MPA and MBA are degrees within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·the courses were registered on CRICOS:

    ·the courses were completed in a total of at least 16 calendar months and as a result of at least 2 years academic study;

    ·all instruction was in English; and

    ·the courses were conducted in Australia while the applicant held a subclass 573 visa authorising study in Australia.

18. 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.

19. On 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

20. 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.

    Kira Raif