Levy (Migration)

Case •

[2016] AATA 1398

•

8 June 2016

Levy (Migration) [2016] AATA 1398 (8 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Stephanie Levy

CASE NUMBER:  1622130

DIBP REFERENCE(S):  BCC2016/3511709

MEMBER:Susan Trotter

DATE:8 June 2016

PLACE OF DECISION:  Brisbane

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 8 June 2018 at 4:58pm

CATCHWORDS
Migration – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant satisfied the ‘Australian Study Requirement’ in the 6 months preceding the date of the visa application – Whether mandatory internship was ‘completed’ by the date of application – Where the internship had not been administratively assessed by the application date - No further participation required by applicant by date of application – Decision remitted with direction

LEGISLATION
Education Services for Overseas Students Act (Cth), s 9
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cl 485.231

CASES
Venkatesan v MIAC & Anor [2008] FMCA 409

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minister) on 6 December 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

    [1] Now the Minister for Home Affairs.

  2. The applicant is a 22 year old citizen of Brazil. She arrived in Australia in July 2012 as the holder of a Subclass 571 (School Sector) visa and has undertaken various study in Australia. She applied for the temporary visa (the subject of this application), known as a Subclass 485 visa, on 21 October 2016.

  3. Visa Class VC contains Subclass 485. 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).

  4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations, because the delegate was not satisfied that she satisfied the ‘Australian study requirement’ in the six months ending immediately before the day the application was made. This finding was based upon a letter of completion from the applicant’s educational provider stating that the applicant’s study status for the applicable study was passed on 3 November 2016, which is not within the stipulated six month period.

  5. The applicant applied to the Tribunal on 22 December 2016 seeking review of the delegate’s decision.

  6. The applicant appeared before the Tribunal on 4 May 2018 to give evidence and present arguments. The Tribunal allowed additional time after the hearing for the applicant to provide further evidence and submissions, which the Tribunal has also taken into account.

  7. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing by telephone.

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

    ISSUES

  9. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream, which criteria includes cl.485.231 of Schedule 2 to the Regulations. Clause 485.231 requires that:

    (a)  the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing (cl.485.231(1));

    (b)  each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (cl.485.231(2));

    (c)  the applicant has satisfied the ‘Australian study requirement’ in the period of six months ending immediately before the day the application was made (cl.485.231(3)).

  10. For the purposes of cl.485.231(1), the Minister has specified the qualifications in instrument IMMI 13/013, that is, qualifications undertaken at Australian Qualifications Framework (AQF) level seven or higher:

    (a)Bachelor Degree;

    (b)Bachelor (Honours) Degree;

    (c)Masters by Coursework Degree;

    (d)Masters by Research Degree;

    (e)Masters (Extended) Degree and/or;

    (f)Doctoral Degree.

  11. For the purposes of cl.485.231(2) the Minister has specified in instrument IMMI13/031 that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.

  12. Relevant to cl.485.231(3), under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:

    (a)  are registered courses; and

    (b)  were completed in a total of at least 16 calendar months; and

    (c)  were completed as a result of a total of at least two academic years’ study; and

    (d)  for which all instruction was conducted in English; and

    (e)  an applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

  13. ‘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). 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.

  14. Regulation 1.15F(2) defines the term ‘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 subregulation (2), before the award is formally conferred.

  15. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Does the applicant hold a qualification of a kind specified? And, if so,

    (b)  Was the qualification conferred or awarded by a specified institution? And, if so,

    (c)  Did the applicant satisfy the Australian study requirement in the period of six months ending immediately before the day of the visa application?

    CONSIDERATION

  16. The applicant listed the following Australian study in her visa application:

    Bachelor in International           Southern Cross University         From 16/06/14 To 20/10/16

    Hospitality Management

  17. The applicant provided a Student Verification Letter for a Bachelor of Business in Tourism and Hospitality Management, from the Southern Cross University dated 16 November 2016, to the then Department of Immigration and Border Protection[2] (the Department) with her application. The letter stated that the applicant’s study status was ‘passed on 3 November 2016’ and that her study dates were 16 June 2014 to 22 October 2016.

    [2] Now the Department of Home Affairs

  18. On 19 December 2017, the applicant provided a completion letter dated 8 December 2016 to the Tribunal which included as follows:

    Course:  Bachelor of Business in  International  Hospitality Management

    …

    Course C of E (Confirmation of Enrolment) proposed             

    study dates:   16th June 2014 to October 22nd 2016

    …

    Satisfied requirements:  30th September 2016

    Recommended Graduation Ceremony;  May 2017

    This award was taught entirely in English.

    On advice from the internship officers [names deleted], Miss Levy satisfied her internship and therefore the above mentioned Bachelors on the 30th of September 2016 and is eligible to graduate with the award.

    …

  19. Pre-hearing written submissions were provided to the Tribunal, referring to the 19 December 2017 letter from the University, submitting that based on that letter the applicant satisfied the requirements for the degree on 30 September 2016, and therefore satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made.

  20. On 16 April 2018, the Tribunal wrote to the Southern Cross University seeking clarification of the date upon which the applicant completed the academic requirements for award of a Bachelor of Business in International Hospitality Management.

  21. On 23 April 2018, the Southern Cross University wrote to the Tribunal as follows:

    With reference to your letter dated 16 April 2018, I have reviewed the documents provided to the Tribunal and have made enquiries as to the content and their authenticity.

    I can confirm that the letters were written by University staff members.

    I can also confirm that the letter dated 8 December 2016 refers to the date on which Ms Levy satisfied the internship requirements, and so completed the coursework component of the Bachelor of Business in International Hospitality Management, being 30 September 2016.

    The letter dated 16 November 2016 refers to the date on which Ms Levy’s results were finalised by the University, being 3 November 2016. This is the date on which Ms Levy formally met the academic requirements for the award of her degree. Unfortunately this letter incorrectly referred to Ms Levy having studied a Bachelor of Business in Tourism and Hospitality Management. This error was noted and corrected in any email on the same date.

    In summary, Ms Levy formally met the requirements for the award of a Bachelor of Business in International Hospitality Management on 3 November 2016.

  22. On 1 May 2018, the Tribunal forwarded a copy of the letter from Southern Cross University dated 23 April 2018 to the applicant, care of her representative, for her information.

  23. Further pre-hearing written submissions were provided to the Tribunal on 4 May 2018 submitting that policy is at odds with the relevant regulation, noting that r.1.15 provides that ‘“completed” in relation to a degree means having met the academic requirements for its award’ and that the applicant ‘met the academic requirements’ for the award of the relevant degree on 30 September 2016 and therefore completed the degree on that date, as stated in the earlier completion letter from the University.

  24. At hearing, the Tribunal put information to the applicant pursuant to s.359AA of the Act, being the information before it from Southern Cross University, suggesting that 3 November 2016 was the date upon which the University determined that the applicant met the academic requirements for award of the Bachelor of Business in International Hospitality Management.

  25. The Tribunal indicated the reason the information is relevant is because, if the Tribunal accepted that information, it would have to find that she completed the course on 3 November 2016, that is after the date of the visa application and therefore not in the six month period ending immediately before the day of the visa application on 21 October 2016, which would lead the Tribunal to have to affirm the decision under review to refuse to grant the visa.

  26. The applicant indicated she wished to comment on or respond to the information there and then. She told the Tribunal that she received an email from Luke Davies, the Student Administration Services Officer at Southern Cross University, on 1 July 2016 where he says, ‘Dear Students, Final grades for Session 1 2016 and Study Period 2 are now available through My Enrolment’, which shows that she had completed the core units, and the results for those units had been published on 1 July 2016. She also referred the Tribunal to a further document, being the Bachelor of Business in International Hospitality Management Course Structure where it says, at 4.1, ‘[t]o be eligible for the award of Bachelor of Business in International Hospitality Management’ a candidate shall successfully complete twenty-four (24) units and an internship, and to a letter from Julia Caldicott, Southern Cross University, dated 1 September 2016, stating that ‘Stephanie is obligated to complete an industry relevant internship unit to complete the course’, and that the applicant was due to complete the internship placement on 30 September 2016.

  27. The Tribunal raised with the applicant that a concern might be that the internship was a necessary part of the course and that, according to the University, that was not assessed or finalised until 3 November 2016.

  28. The applicant’s representative, at hearing and in post-hearing submissions, submitted that the internship was completed on 30 September 2016 and she had nothing further to do after that time. The placement did not need to be academically marked. She met the academic requirements on 1 July 2016. Whatever was done by the University after 30 September 2016 was administrative in nature.

  29. The Tribunal has also taken into account the oral and written submissions by the applicant’s representative and further documentary evidence received following the hearing.

    Issue 1 – Does the applicant hold a qualification of a kind specified?

  30. The Tribunal has accessed the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) database, which confirms that the Bachelor of Business in International Hospitality Management at the Southern Cross University is at the academic level of Bachelor Degree. A Bachelor Degree is one of the qualifications specified in IMMI 13/013 and is at AQF level 7. Clause 485.231(1) is therefore satisfied.

    Issue 2 – Was the qualification conferred or awarded by a specified institution?

  31. The CRICOS database confirms that Southern Cross University is registered and offers courses at degree level and above. Therefore cl.485.231(2) is satisfied.

    Issue 3 ­– Did the applicant satisfy the Australian study requirement in the period of six months ending immediately before the day of the visa application?

  32. Having regard to all evidence and material before it, including the CRICOS records and the Provider Registration and International Students Management System (PRISMS) records, the Tribunal finds that Bachelor of Business in International Hospitality Management is a registered course, being a course of education provided by an institution that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.

  33. The documentary evidence before the Tribunal shows that the applicant completed the Bachelor of Business in International Hospitality Management between 16 June 2014 and 30 September 2016. The applicant’s study was therefore as a result of courses that were completed in a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met.

  34. CRICOS records show that the academic duration of the Bachelor of Business in International Hospitality Management Bachelor of Technology course is 156 weeks (that is, at least two academic years combined) and, further, that all instruction for the courses is in English. Based on this evidence, the Tribunal is satisfied that the applicant meets the requirements of rr.1.15F(1)(c) and 1.15F(1)(d).

  35. Based on records from the Department, the Tribunal is satisfied that the applicant held the following visas between 16 June 2014 and 30 September 2016:

    Subclass 572 Vocational and

    Educational Training Sector visa  8 April 2014 to 28 July 2016

    Subclass 010 Bridging visa  21 July 2016 to 16 August 2016

    Subclass 500 Student visa      16 August 2016 to 22 October 2016

  36. The Tribunal is therefore satisfied that the applicant undertook the courses while in Australia as the holder of various visas authorising her to study.[3] The Tribunal therefore finds that r.1.15F(1)(e) is met.

    [3] In accordance with cl.010.611(4)(a)(i) of Schedule 2 to the Regulations, when a Bridging Visa Class A is granted to a person who is the holder of a student visa at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. The Department’s records show that the only additional specific conditions imposed upon the applicant’s Subclass 010 visa were condition 8105 prohibiting work of more than 40 hours per fortnight when the applicant’s course was in session (applicable only if doing a course other than a masters by research or a doctorate course) and 8501 in relation to maintaining health insurance.

  37. Paragraphs (a) to (e) of r.1.15F(1) having been met, the Tribunal is therefore satisfied and finds that the applicant satisfied the Australian study requirement.

  38. To satisfy cl.485.231, the applicant needs to have satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made, 21 October 2016.

  39. As already noted, the r.1.15F(2) provides that ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

  40. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC & Anor [2008] FMCA 409 (Venkatesan), where the court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. The term ‘completed’ was also considered in Sapkota v MIAC [2012] FCA 981 (Sapkota) where Cowdroy J held 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 education institution’. The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.

  41. There is conflicting information before the Tribunal as to when the applicant ‘completed’ her studies as follows:

    (a)  An email from Southern Cross University Student Administration Services dated 1 July 2016 to the applicant confirming that final grades are available.

    (b)  Southern Cross University’s letter of 1 September 2016 states that the applicant is required to complete an industry relevant internship as her final units to complete the Bachelor of Business in Tourism and Hospitality Management and is due to complete her internship placement on 30 September 2016.

    (c)  Southern Cross University’s letter of 8 December 2016 states that the applicant ‘satisfied requirements’ for the Bachelor of Business in Tourism and Hospitality Management on 30 September 2016.

    (d)  Southern Cross University’s letter of 23 April 2018 states, amongst other things, that the letter of 8 December 2016 ‘refers to the date on which the applicant satisfied the internship requirements, and so completed the coursework component of the Bachelor of Business in International Hospitality Management, being 30 September 2016’, and that the letter of 16 November 2016 refers to the date on which the applicant’s results were finalised by the University, being 3 November 2016, and that is the date on which the applicant formally met the academic requirements for the award of the degree.

  42. Given the ambiguity in the dates referenced by the University, a Tribunal officer contacted the University to clarify the relevance of the 3 November 2016 date. The Examinations, Progression and Timetable Manager, Student Administration Services, advised that the internship had been completed by the applicant on 30 September 2016 and that the process that occurred on 3 November 2016 was the academic board approving the graduation of the applicant and did not involve any participation requirement of the applicant, nor was it based upon specific academic evaluation of her work, but was an overall approval and check that she had completed the requirements for the degree. Having had the benefit of this explanation, the Tribunal is satisfied and finds that the applicant had achieved the necessary results to enable her to be awarded the degree by 30 September 2016, and that all that subsequently occurred were certain steps, of an administrative nature, undertaken by the University.

  1. Having had regard to those matters, the Tribunal is satisfied and finds that the Bachelor of Business in International Hospitality Management was completed by the applicant on 30 September 2016, which is within the period of six months ending immediately before the day of the visa application on 21 October 2016.

  2. Clause 485.231(3) is therefore met.

    Conclusion

  3. As all the subclauses of cl.485.231 have been met, cl.485.231 is met.

  4. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

  5. 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.

    Susan Trotter


    Member


Key Legal Topics

Areas of Law

  • Immigration

  • Statutory Interpretation

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Statutory Construction

  • Jurisdiction

  • Procedural Fairness

  • Remedies

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Venkatesan v MIAC [2008] FMCA 409
Sapkota v MIAC [2012] FCA 981