Moreira Grez (Migration)

[2022] AATA 3659

Moreira Grez (Migration) [2022] AATA 3659 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Benjamin Antonio Moreira Grez
Ms Amanda Helena Moreira Cautivo

CASE NUMBER:  1923242

HOME AFFAIRS REFERENCE(S):          BCC2019/2731533

MEMBER:Michelle East

DATE:8 September 2022

PLACE OF DECISION:  Perth

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

Statement made on 08 September 2022 at 3:34pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant has not ‘completed’ the Australian study requirement in the six months prior to the date of his visa application – Australian study requirement not met – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.223

Education Services for Overseas Students Act 2000

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 31 July 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 May 2019. 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 case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed the Australian Study requirement in the 6 months ending immediately before the date of his application.

4. The applicant appeared before the Tribunal on 31 August 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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 13/031. In this case, the applicant holds a Doctor of Philosophy (PhD) which is a qualification specified in that instrument.

8. Accordingly, cl 485.231(1) is met.

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

9. 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.  The Instrument states 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 and other courses at degree level and above’.

10. The applicant undertook his PhD at the University of Western Australia (UWA) which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

12. 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.

13. Under 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 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.

15. Information provided by the applicant to the Tribunal demonstrates the applicant undertook his Doctor of Philosophy from 6 October 2014 to 4 December 2018.  This constitutes a ‘degree’ as defined in r 2.26AC(6).

16. The Tribunal is satisfied that the Doctor of Philosophy is a registered course, being a course of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses for overseas students.  The Tribunal therefore finds that r 1.15F(1)(a) is met.

17. Paragraph 1.15F(1)(b) requires that the course or courses relied upon to satisfy the Australian study requirement were completed in a total of at least 16 calendar months.  The applicant’s degree was from 6 October 2014 to 2 December 2018 when the thesis was submitted for examination.  The course was therefore completed in a total of at least 16 calendar months.  The Tribunal is therefore satisfied that r 1.15(1)(b) is met.

18. Based on the information provided on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that the Doctor of Philosophy is registered for at least 156 weeks and all instruction was in English.

19. The Tribunal is satisfied that the applicant meets the requirements of r 1.15(1)(c) and 1.15F(1)(d).

20. Departmental records confirm that during material times the courses were undertaken, the applicant was the holder of the relevant visas authorising him to study in Australia.  The Tribunal therefore finds that r 1.15F(1)(e) is met.

21. As paragraphs (a) to (e) of r 1.15F(1) have been met, the Tribunal is satisfied that the applicant has satisfied the Australian study requirements.

22. To satisfy cl.485.231(3) the applicant must show that he satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made, that is, 27 May 2019.

23. A Statement of Qualifications dated 27 February 2020 notes a completion date of 24 February 2020.

24. In his submission to the Tribunal dated 23 August 2022, the applicant has said that the failure to provide a Certificate of Completion at the time his visa application was lodged was due to two factors outside his control.  Namely:

    -A marked disparity between my Doctorate thesis reviewers: while two overseas and international recognized researchers were pleased with the quality of my thesis, a third, local reviewer suggest the UWA Graduate Research school to award me a Master’s degree instead based on redundant, off-topic and often insidious comments throughout my thesis.

    -Such disparity between reviewers forced the Board of Examiners to take several months to agree the total dismissal of the third reviewer’s comments and keeping the comments and suggestions made by reviewers one and two.  As the Board of Examiners meets only once per month, a process that mostly takes 4-5 month in my case took closer to a year.

25. A letter in support dated 20 May 2019 was provided by Mr Gavin Fung, Manager of the Thesis Examination at the Graduate Research School at UWA.  In that letter he states:

    It normally takes about nine months for a student to complete the requirements for PhD after they submit their theses for examination: the average time for examination and classification is five months, and then most students require four months in which to revise and submit the final, correction version of their thesis

26. The applicant submitted his thesis in December 2018.  The best-case scenario for the applicant would be for him to complete the requirements for the degree approximately nine months later, which would still post-date the date of his visa application.

27. The authorities are clear that the minimum required for the completion of a degree is the attainment of the results or academic credits so that the relevant qualifications can be awarded. [1]

    [1] Ali [2021] FCA 1311

28. In this case, even though the applicant had submitted his doctoral thesis and two examiners had assessed it as satisfactory, he had not completed the course requirements until 24 February 2020.  The fact that there were delays by the examiners of which one had assessed it as not satisfactory means that the awarding of the degree was not a certainty at the date of his visa application.  The applicant also confirmed in his oral evidence that he was undertaking revision to his thesis after the date he lodged his visa application.

29. Unfortunately, this means that the requirements of cl.485.231(3) cannot be satisfied because the applicant has not ‘completed’ the Australian study requirement in the six months prior to the date of his visa application.

30. Whilst this outcome is very unfortunate for the applicant, the Tribunal has no option other than to affirm the decision under review.

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

32. Accordingly, cl 485.231(3) is not met.

33. 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.

    DECISION

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

    Michelle East
    Senior Member