Kruger (Migration)

[2023] AATA 3881

Kruger (Migration) [2023] AATA 3881 (10 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Marilene Kruger
Mr Jan Johannes Jacobus Kruger

REPRESENTATIVE:  Mr Bruce Andrew Macfarlane (MARN: 1461325)

CASE NUMBER:  2111755

HOME AFFAIRS REFERENCE(S):          BCC2019/6515167

MEMBER:K. Chapman

DATE:10 November 2023

PLACE OF DECISION:  Brisbane

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

·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 10 November 2023 at 2:20pm  

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – courses completed within 6 months before visa application – applicant’s qualification completed after visa application – clarifying letter from university – academic requirements satisfied before administrative requirements – decision under review remitted        

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15, 2.26

CASES

Ali v MICMSMA [2021] FCA 1311
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 25 August 2021, to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant applied for the visa on 6 December 2019, including the second named applicant in the visa application. 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 (Cth) (‘the Regulations’), including criteria in different streams. In this matter, the applicant is seeking to meet the criteria in the Post-Study Work stream, which relevantly include cl 485.231.

3. The delegate refused to grant the visas because the first named applicant (hereafter ‘the applicant’) did not satisfy cl 485.231 of Schedule 2 to the Regulations. In the view of the delegate, the applicant did not complete her Bachelor of Science (Occupational Therapy) qualification until after the time of application for the visa. Therefore, the delegate was not satisfied the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

4. On 3 September 2021, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application. In due course, the applicant submitted material including written submissions and academic correspondence. Of note, the applicant submitted a letter from the Course Coordinator of Occupational Therapy at Edith Cowan University, dated 27 August 2021, clarifying the applicant’s course completion date.

5. The applicant appeared by telephone before the Tribunal on 6 October 2023 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by her registered migration agent (‘the representative’).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 review is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

8. Clause 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 LIN 23/023. In this review, the applicant holds a Bachelor of Science (Occupational Therapy) which is a qualification specified in that instrument.

9. Therefore, the applicant satisfies cl 485.231(1).

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

10. Clause 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 LIN 23/021. In this review, the applicant’s qualification was conferred or awarded by Edith Cowan University which is an educational institution specified in that instrument.

11. Therefore, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

12. Clause 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.

13. Pursuant to 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.

14. ‘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 review, 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.

15. The Tribunal notes that the applicant submitted to the Department a letter from Edith Cowan University dated 16 December 2019. That letter suggested the applicant completed her Degree on 10 December 2019, which was after the time of application for the visa. However, the applicant submitted to the Tribunal a clarifying letter from the Course Coordinator of Occupational Therapy at Edith Cowan University, dated 27 August 2021, confirming that the academic requirements for the Degree were satisfied by her on 11 November 2019. This letter clarified that the earlier correspondence from the University regarding the applicant referred to formal administrative requirements, rather than the date the academic requirements for the Degree were satisfied.

16. The Tribunal notes that the submitted University academic transcript of the applicant, dated 19 November 2019, indicates that she had satisfied the academic requirements for the Degree by that date. Indeed, the date of issuance of this transcript is prior to the time of application for the Subclass 485 visa. Furthermore, the applicant explained to the Tribunal at the hearing that she had completed the academic requirements for her Degree, prior to applying for the Subclass 485 visa. The Tribunal accepts her evidence.

17. The Tribunal notes that in the Federal Court matter of Sapkota v MIAC [2012] FCA 981 (7 September 2012), Cowdroy J [at 26] held that the relevant date to be considered is the date when the student satisfies the academic requirements for the Degree. The date of submission of the final piece of assessment is not the relevant date, nor is the date when the institution informs the student of the results, and nor is the date of the formal conferral of the Degree. In the Federal Court matter of Ali v MICMSMA [2021] FCA 1311 (27 October 2021), McKerracher J [at 39 and 48] held that the academic requirements for a Degree are satisfied when the relevant study is assessed to be satisfactory. Accordingly, this is the relevant date to consider for the purposes of cl 485.231(3).

18. On balance, following careful consideration of the available evidence, the Tribunal is satisfied that the applicant completed the Bachelor of Science (Occupational Therapy) on 11 November 2019, as she met the academic requirements for the award on that date. The Tribunal also accepts that confusion has arisen through Edith Cowan University issuing various letters, by different authors, regarding the applicant.

19. Based on the above evidence, the Tribunal is satisfied the applicant completed a Degree (as defined in reg 2.26AC (6)) in the six months immediately before the visa application was made. The Tribunal is further satisfied that the qualification was as a result of a course that met the requirements of reg 1.15F(1). Accordingly, 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. Therefore, the applicant satisfies cl 485.231(3).

20. Having regard to all relevant matters, the Tribunal finds that the applicant satisfies cl 485.231. The appropriate course is, therefore, to remit the visa application to the Minister to consider the remaining criteria for Subclass 485 visas.

21. The Tribunal finds that as the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, his outcome will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.

    DECISION

22. The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl 485.231 of Schedule 2 to the Regulations.

    K. Chapman
    Member