Murombedzi (Migration)

[2022] AATA 2955

Murombedzi (Migration) [2022] AATA 2955 (25 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nunurai Bessing Bertha Murombedzi

CASE NUMBER:  2116645

HOME AFFAIRS REFERENCE(S):          BCC2020/2358237

MEMBER:R. Skaros

DATE:25 August 2022

PLACE OF DECISION:  Sydney

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 25 August 2022 at 8:26am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – course completed with 6 months before application made – degree certificate showed date of admission to degree, not course completion date – letter from university provided to tribunal – course completion date the same as admission to degree – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC(6), Schedule 2, cl 485.231(3)

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 3 November 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 September 2020. 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 was not satisfied on the evidence that the applicant completed the course in the period of 6 months ending immediately before the day the application was made, and therefore found she did not satisfy cl.485.231(3) of Schedule 2 to the Regulations.

4. The Tribunal did not consider a hearing to be necessary in this case as it was able to find in favour of the applicant on the evidence and material before it.

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

   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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl.485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl.485.231(3)(b)). 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 13/013. In this case, the applicant holds a Bachelor of Social Work (with Honours) which, as a bachelor’s degree, 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.

10. In this case, the applicant’s qualification was conferred or awarded by the University of Newcastle, which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), offers courses at degree level and above, and therefore 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 met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

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: LIN 19/085.

15. The applicant in this case claims to have completed a Bachelor of Social Work with Honours at the University of Newcastle between 24 February 2015 and 3 August 2020. She provided a copy of her degree certificate which stated that she was admitted to the degree on 3 August 2020.  However, the delegate was not satisfied this demonstrated the date she was taken to have completed the course within the meaning of r.1.15F, and by letter dated 24 March 2021, requested her to provide a letter of completion from the University demonstrating the date she completed the course. The applicant provided a screen shot of an email the education provider sent to her on 10 August 2020, confining that she had completed the degree and that ‘if’ she had received ‘Honours’ a further ten days should be added to view this in her online student account, and on her academic transcript. The delegate was not satisfied this was sufficient evidence to demonstrate the date she completed the course. The delegate was not satisfied on the evidence that the course was completed in the period of 6 months ending immediately before the day the application was made and found she did not satisfy cl.485.231.

16. On 22 November 2021, the applicant provided a submission to the Tribunal indicating that she believed the screenshot she provided to the Department was sufficient evidence of her course completion, but she had since obtained a letter from the education provider demonstrating the date she had completed the course. The applicant attached a letter from the University of Newcastle dated 5 November 2021 stating that she commenced the course in February 2015 and the course completion date was 3 August 2020 (the date appearing on the degree certificate provided to the Department). The letter stated that the applicant studied full-time and part-time and that the course was undertaken in English.

17. In this case, the Tribunal gives weight to the letter from the education provider stating that the applicant completed the course on 3 August 2020 and finds that this is the date she ‘completed’ his degree within the meaning of r.1.15F. This falls within the period of 6 months immediately before the date on which the visa application was made.

18. Further evidence before the Tribunal confirms that the course was registered on CRICOS as requiring 208 academic weeks of study, the applicant completed the course between 24 February 2015 and 3 August 2020, a period over 16 calendar months, and the course was conducted in English. The course was conducted in Australia and the applicant held relevant visas permitting the relevant study during this period.

19. In relation to the various components of the Australian study requirement, the Tribunal is satisfied on the evidence before it that:

    ·The primary applicant's Bachelor of Social Work (Honours), a Degree within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·the course was a CRICOS registered course;

    ·the course was completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the course was conducted in Australia while the applicant held visas authorising study in Australia.

20. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, cl.485.231(3) is met.

21. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

22. 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.

    R. Skaros
    Senior Member