Kaur (Migration)

[2019] AATA 4606

Kaur (Migration) [2019] AATA 4606 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Manmeet Kaur
Mr Paviter Puneet Singh Nijjar

CASE NUMBER:  1826093

HOME AFFAIRS REFERENCE(S):           BCC2018/2804399

MEMBER:Danielle Galvin

DATE:21 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 October 2019 at 9:40am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – delayed course completion – deferred examination – completion of academic requirements as decided by the education provider – date of conferral – ratification by Board of Examiners – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.231, 485.311

CASES
Sapkota v MIAC [2012] FCA 981

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 29 August 2018 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 26 July 2018. 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 includes cl.485.231 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 because the applicant had claimed to have studied a Masters of Professional Accounting at Edith Cowan University (the University) from 22 November 2017 to 24 July 2018. However, the letter of completion provided from that University lists the completion date as 8 August 2018. Consequently the completion date was later than the application date the delegate found that the Masters degree was not completed within the period of six months ending immediately before the day the application was made and therefore the requirements of r.485.231(3) were not met. Therefore the criteria for the grant of a Temporary Graduate (Post-Study Work) visa in the Post-Study Work stream were not met by the applicant and the visa applications were refused.

4. The Department was in receipt of the following documents:

   ·The visa ;

   ·A complete disclosure police checks;

   ·Copies of passport extracts;

   ·Marriage certificate;

   ·Secondary education results;

   ·University results from Panjab University;

   ·Certificate of achievement in English;

   ·IELTS test report form dated 31 August 2017;

   ·Medibank details;

   ·Letter dated 10 August 2018 from the University confirming that the applicant’s course was conducted in English and that the applicant had completed all requirements for the course. The letter noted that the course commenced on 27 February 2017 and was completed on 8 August 2018.The letter notes the CRICOS CODE AS 079124B, the course being L97, Master of Professional Accounting.;

   ·Applicant’s birth certificate;

   ·Academic transcript for Curtain University dated 7 February 2017;

   ·The university’s full unit history for the applicant;

   ·The University’s confirmation of enrolment for the applicant.

5. On 4 June 2019 the Tribunal wrote to the applicant inviting them to comment on or respond to the information  that the course was completed, according to the University, on 8 August 2018. A response was required by 18 June 2019.

6. On 9 May 2019 the Tribunal sent an email to the University pursuant to section 359(1) of the Migration Act 1958 (the Act) requesting information in relation to when the applicant completed their degree. In response a letter from James Spurgeon, Coordinator, Student Hub of the University, dated 17 June 2019, was received by the Tribunal confirming the circumstances of ” the delayed course completion” of the applicant. The letter states that the applicant “deferred her exam for the unit ACC6063 Auditing and Assurance Service” which “led to a late mark being entered on the 26^th July and therefore there was a delay in course completion of the above award to 8 August 2018. Had the student not required the deferred examination the delay in course completion may not have occurred.”

7. On 19 June 2019 the agent for the applicant, Connect Migration Solutions, made written submissions to the Tribunal. In those submissions the applicant claims that the delegate did not assess course completion requirements in making the decision. The applicant claims that her results for the degree were marked by 26 July 2018 and she passed them all and received the results for all units save for one which was marked on 26 July 2018. The applicant claims that having passed this unit she met the course completion requirements for a Masters of Professional Accounting. The University confirmed a completion date of 8 August 2018. The applicant contends that the delegate made their decision based on the completion letter from the University and that this was incorrect as the completion date should be the date that she academically met the requirements of r.1.15F which was 26 July 2018. The applicant makes no mention of a deferral request as noted in the letter from the University dated 17 June 2019.

8. The submission refers to the matter of Sapkota v MIAC [2012]FCA 981, however, the extract appears to mention the Tribunal’s reasoning which was dealt with by Cowdroy J in that decision.

9. The Tribunal has had the benefit of the following documents in addition to the documents on the Department’s file:

   ·Email from Candace Van Deventer , Student Success Coordinator, from the University, to the Tribunal dated 15 May 2019  in response to the Tribunal’ stating that:

   “22/06/2018 last day of the standard examination period for Semester 1, 2018.

   13/07/2018 ACC6025 unit result finalised.

   26/07/2018 ACC6030 unit result finalised.

   13/07/2018 LAW6300 unit result finalised.

   8/8/2018 course requirements completed and course award conferred.”

   ·Written submission from the applicant’s agent;

   ·17/6/19 letter from the University confirming the completion dated as 8 August 2908 due to applicant’s deferral;

10. The matter was listed for hearing on 10 September 2019 for the applicant to give evidence and present arguments.

11. The applicants were represented in relation to the review by their registered migration agent.

12. At the hearing the applicant confirmed that she had deferred the sitting of one of her exams as a result of an accident but that she had all her results as of 26 July 2019 and in her view she had completed the course at that time.

13. The Tribunal allowed the applicant to seek an amended conclusion from the University which was required by 7 October 2019.

14. Following the hearing the applicant’s agent made a further submission dated 7 October 2019 and attached the following documents:

    ·Email from Cloe Nickoll dated 12/9/19 at 10.20am stating “The Course Completion and Conferral date(displayed on the Testamur) are the date in which student’s academic record is ratified by the Board of Examiners, who determine if a student both met the requirements of their course (following submission of their final results)…..Therefore, whilst your final individual unit result for ACC06030 Auditing and Assurance Services was uploaded to your record on the 26 July 2018 following the outcome of a deferred examination, your academic record was not ratified by the School’s Board of Examiners until 8 August 2018, where at which time you were “cleared to graduate”…..This requirement is in accordance with the University’s Admission, Enrolment and Academic Progress rules which, under Rule 3.4.1.b, states that” a Student will continue to be an enrolled as a Student until the date the Student completes their Course, as determined by the relevant Board of Examiners”.”

    ·Email from the applicant dated 12/9/19, 11.05am, to Student Administration asking for clarification as to when the course was completed;

    ·Email dated 12/9/19, at 2.20 pm, from Cloe Nickoll, Team Leader, Assessments and Student Records, Edith Cowan University, addressed to the applicant stating that “This email is to confirm that your final result for the L97 Master of Professional Accounting was available to you from 26 July 2018 and your course was conferred on the 8 August 2018;

    ·Email dated 17/9/19, 4.25pm, from the applicant to student administration requesting that the course be determined to be completed on 26 July 2019;

    ·Letter dated 17/9/19 from Cloe Nickoll to the applicant repeating the comments in her email of 12/9/19;

    ·Submission by the agent dated 7 October 2019 stating “ECU is not ready to see her or give her any letter with completion date as 26 July 2018 but has given this letter stating that her results were made available to her on 26 July 2018.”  The agent requested that the applicant’s completion date be seen as the date when she completed and met the course requirements.

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

    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?

16. 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 Masters of Professional Accounting which is a qualification specified in that instrument.

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

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

18. 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 IMMI13/031.

19. In this case, the applicant’s qualification was conferred or awarded by Edith Cowan University which is an educational institution specified in that instrument.

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

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

21. 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.

22. 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.

23. ‘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.

    Did the applicant complete a degree, diploma or other trade qualification in the 6 months immediately before the application was made?

24. Regulation 1.15F(2) defines the “completion” of a degree, diploma or trade qualification as follows:

    (2) In this regulation:

    Completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award

    Note:    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for sub-regulation (2), before the award is formally conferred.

25. This definition was addressed in Sapkota v MIAC [2012] FCA 981 , where Cowdroy J held that the relevant date for determining when a student has completed the academic requirements is the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the institution. The date of the submission of the final piece of assessment is not the relevant date nor is the date when the institution informs the students of the results.

26. The applicant applied for the visa on 26 July 2018. The Tribunal has been provided with correspondence from Edith Cowan University dated 17 June 2019 confirming that the course was completed on 8 August 2018 as a result of the deferred examination in unit ACC6030 Auditing and Assurance Services. Further, correspondence from the University notes that this is the conferral date. Despite requests from the applicant the University did not amend this date as the completion date.

27. The applicant has therefore not established that they had completed the degree in the 6 months immediately before the day the application was made , being the 26 July 2018 and therefore does not satisfy the Australian Study Requirement.

28. The Tribunal has not received any other evidence that the applicant had completed any other courses of study that may satisfy the Australian study requirement in the 6 months immediately before the day she made the Subclass 485 visa application.

29. Accordingly cl.485.231(3) is not met

30. The Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.

31. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl.485.231. Therefore, the applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, and the secondary criteria cannot be met either. As this is the only relevant subclass in this case, the decision under review will be affirmed.

32. The secondary visa applicant‘s application was refused as cl.458.311 was not met as they were found not to be a member of the family unit of the holder of a Subclass 485 visa. The applicant submitted that the secondary applicant will be eligible for a visa once hers is approved. Given that the applicant has not been successful the secondary visa applicant is not a member of the family unit of a holder of a Subclass 485 visa and therefore does not meet cl.458.311.

    DECISION

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

    Danielle Galvin
    Member