Kheang (Migration)

[2020] AATA 2594

Kheang (Migration) [2020] AATA 2594 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Thida Kheang

CASE NUMBER:  1811293

DIBP REFERENCE(S):  BCC2018/345290

MEMBER:Danielle Galvin

DATE:15 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional)(ClassVC) visa.

Statement made on 15 April 2020 at 2:29pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – Australian study requirement not met – completion date of the course was not provided – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, Schedule 2, cl 485.231
Education Services for Overseas Students Act 2000, s 9

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 Immigration 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 21 January 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.

3. The delegate refused to grant the visa on 5 April 2018 because the applicant did not provide documentation evidencing when they had “completed” the study the subject of the application by the time the delegate made their decision. Therefore, the delegate was not satisfied that cl.485.231(3), the Australian study requirement, had been met. The applicant had provided the Department with 2 identical Certificate Transcripts issued by the University of Western Australia dated 4 August 2017 confirming that the applicant had graduated on 4 August 2017. However, the delegate found that these documents did not state the actual date of the successful completion of the requirements for the degree. The actual completion date is required.

4. In support of the Subclass 485 visa application that is the subject of this review the applicant is relying on their Degree of Doctor of Philosophy from the University of Western Australia (the University). According to a letter dated 9 May 2019, from Mr Gavin Fung, Manager Thesis Examination, Graduate Research School of the University of Western Australia, addressed to the Tribunal, the applicant satisfied the requirements for this degree on 17 May 2017 and the degree was conferred on 4 August 2017. A completion date was not stated.

5. Previously and on 4 August 2017 Professor Grady Venville, Deputy Vice-Chancellor Education (Acting) certified in an Australian Higher Education Graduation Statement that Thilda Kheang was awarded a Doctor of Philosophy from the University of Western Australia and on the same date the Vice –Chancellor admitted Thilda Kheang to the degree of Doctor of Philosophy. A completion date was not referred to.

6. The issue for the Tribunal is to determine when the degree was completed, as determined by the University, for the purposes of cl.485.231.

7. The Tribunal invited the applicant, on 15 July 2019, to comment on or respond to the information that there was no evidence before the Tribunal that the coursework undertaken by the applicant was completed in the last 6 months ending immediately before the day the application was made. A response was required by 29 July 2019.

8. On 29 July 2019 the applicant wrote to the Tribunal advising that he had misunderstood the term “Completion of Study” and assumed that his graduation date of 4 August 2017 was completion of his study. He acknowledges that he made a mistake in lodging his application on 21 January 2018 which resulted in a failure to persuade the Department that he had satisfied cl.485.231(3).

9. The matter was listed for hearing on 28 October 2019 and was postponed, at the applicant’s request, until 19 November 2019. The applicant requested a further postponement and the matter was relisted for 10 December 2019. At the hearing the Tribunal advised the applicant that it had not yet received any information to confirm the “completion date” of the degree from the University referring to the letter of Mr Fung which did not address the completion date. The Tribunal concluded the hearing allowing the applicant until 31 January 2020 in which to produce such evidence.

10. On 17 January 2020 Professor Tom O’Donoghue a Fellow of the Academy of the Social Sciences in Australia and from the University wrote an open letter stating that the applicant graduated on 4 August 2017 and expressing his support for the applicant. However, the completion date of the course was not provided.

11. On 23 January 2020 the applicant requested further time in which to provide further material  and the Tribunal permitted an extension of time in which to provide this material until 25 February 2020.

12. On 3 February 2020 Professor Tom O’Donoghue wrote a further open letter stating that, having consulted his 2017 diary that in his view, the applicant met requirements for completion so he could graduate on 1 August 2017. However, this letter falls short of providing a completion date from the University but rather expresses the opinion of one of its staff.

13. On 19 February 2020 Emeritus Professor Helen Wildy, the former dean of the University’s  Faculty of Education and Head of the Graduate School in Education, wrote to the Tribunal, on behalf of the applicant, stating that the corrections of the applicant’s thesis were completed on 1 August 2017 in order to meet the requirements for graduation in August 2017, the exact date being 4 August 2017.

14. Both Professors are clearly supportive of the applicant. However, the University has not confirmed the completion date. The Tribunal has no discretion in relation to the application of the relevant clause. The applicant, having been unable to produce evidence from the University as to a completion date, has been unable to satisfy the requirements of cl.485.231(3).

15. For the following reasons, the Tribunal regrettably must affirm the decision of the Department.

    CONIDERATION OF CLAIMS AND EVIDENCE

16. 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?

17. The applicant holds a specified qualification and meets cl.485.231(1) having obtained the degree of Doctor of Philosophy. Subclass 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 IMMI13/013, which specifies the following qualifications:

    ·Bachelor Degree;

    ·Bachelor (Honours) Degree;

    ·Masters by Coursework Degree;

    ·Masters by Research Degree;

    ·Master (Extended) Degree and/or;

    ·Doctoral Degree.

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

18. Subclass 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.

19. The Tribunal has confirmed that the University of Western Australia is a CRICOS registered provider: CRICOS Code no. 00126G.

20. In this case, the Tribunal is satisfied that the applicant’s qualification was conferred or awarded by an educational institution specified in the relevant instrument.

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

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

22. 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.

23. 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 a t 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.

    ·Completed while the applicant held a visa authorising study.

24. Departmental records indicate that the applicant satisfies this requirement.

25. “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): LIN 19/085.

26. The applicant’s Degree of Doctor of Philosophy from the University of Western Australia, was conferred on 4 August 2017, the applicant having satisfied the requirements for the degree on 17 May 2017. The issue in this matter is when was the course ‘completed”. The correspondence submitted and provided by the university lecturers does not confirm the “completion date”. The University has failed to provide information addressing this issue directly.

27. The degree is registered on the CRICOS for a duration of 208 weeks. The applicant originally commenced the Doctoral Degree in Philosophy at the University of Western Australia on 5 August 2013. The applicant applied for the visa on 21 January 2018 having had the degree conferred to him on 4 August 2017. In the absence of information as to the completion date the applicant has not established that he applied for the visa within 6 months of the date of the completion of the degree. Accordingly, cl 485.231(3) is not met.

28. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl. 485.231. The appropriate course is to affirm the department’s decision.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional (ClassVC) visa.

    Danielle Galvin
    Member