Mutambiranwa (Migration)

[2017] AATA 1597

Mutambiranwa (Migration) [2017] AATA 1597 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Caroline Kudakwashe Mutambiranwa

CASE NUMBER:  1606067

DIBP REFERENCE(S):  BCC2016/743531

MEMBER:Alison Mercer

DATE:13 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2017 at 11:00am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Further evidence provided to demonstrate meeting the requirements of cl.485.231 – Ministerial intervention

LEGISLATION
Migration Act 1958, ss 5B, 65, 351

Migration Regulations 1994, r 1.15F, r.2.26AC, Schedule 2, cl 485.231

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 on 21 April 2016 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 22 February 2016. Visa Class VC contains subclass 485. (For visa applications made before 1 July 2013, there is also a subclass 487; however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate found that the applicant had applied in the Post-Study Work stream refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations. The delegate found that c.485.231(1) required that the applicant held qualification(s) of a kind specified by the Minister in an instrument in writing for the purposes of that clause, and that the relevant written instrument, IMMI 13/013, provided the following qualifications that are as a result of study undertaken at Australian Qualifications Framework (AQF) level 7 or higher:

   (a)Bachelor degree;

   (b)Bachelor (Honours) degree;

   (c)Masters by Course Work degree;

   (d)Masters by Research degree;

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

   (f)Doctoral degree.

4. The delegate noted that the applicant provided with her visa application evidence of having completed the following Australian qualifications:

   (a)Certificate IV in Business Administration;

   (b)Certificate IV in Information Technology Networking; and

   (c)Graduate Diploma of Computer and Network Security.

5. The delegate noted that clarification had been requested of the applicant as to whether she had enrolled and/or completed any other Australian qualifications, and that she had confirmed that she had not (although she had previously completed a Bachelor of Science in Business Information Technology). The delegate found that the applicant’s UK Bachelor degree could not be counted as it was not an Australian qualification, and that none of her Australian qualifications were of the kind specified in IMMI 13/013, as a result of which they could not be used to satisfy the Australian study requirement. Accordingly, the delegate found that she did not meet cl.485.231(3) (requiring her study for the qualification(s) to have satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the visa application was made) and she therefore did not meet cl.485.231.

6. The Tribunal received a review application from the applicant on 29 April 2016.  It was accompanied by a copy of the delegate’s decision, an authorisation for a registered migration agent, Ms Nisha Melwani, to act on her behalf, and copies of her qualifications from the United Kingdom, Zimbabwe and Australia. The latter included the following:

   ·    Graduate Diploma of Computer and Network Security from Edith Cowan University, Western Australia, completed 9 December 2015;

   ·    Certificate IV in Information Technology Networking from the Australian Institute of Commerce and Technology (AICT), issued 21 January 2014; and

   ·    Certificate IV in Business Administration from AICT, issued 5 April 2013.

7. The applicant also enclosed an extract from the Department’s Procedures Advice Manual 3 (PAM3) on the VC-485 Primary Applicant – Post-Study Work Stream, in which the following parts were highlighted in the section 13 on Qualifications:

   The applicant’s eligible qualification must have been completed as a result of undertaking study at AQF level 7 or above…

   The intention of cl.485.231(1) and the associated instrument is to support the policy objective that international students who undertake a Graduate Certificate or Graduate Diploma course which articulates into, or is nested in, a Bachelor or Masters degree be eligible for the Post-Study Work stream provided they ultimately complete an eligible qualification. This provision also prevents applicants from padding their eligible qualification with lower level courses in order to meet the Australian study requirement…

8. The applicant also provided information from the AQF website providing information about the various levels of Australian courses.

9. On 22 June 2017, the Tribunal wrote to the applicant to invite her to attend a telephone hearing on 12 July 2017.  She was also asked to provide any further information she wished to rely upon in support of her case before the hearing.

10. On 3 July 2017, the applicant advised the Tribunal that she would attend the hearing.  She provided a written submission in support of her case, together with supporting documents.  In summary, she argued that:

    ·she had completed the 2 Certificates IV and a Graduate Diploma in Australia and a Bachelor of Science in Business IT in the UK;

    ·IMMI 13/013 provided that she had to have undertaken 1 or more of the listed qualifications in Australia at AQF level 7 or higher;

    ·she applied for the visa in the belief that her Graduate Diploma was a level 8 qualification according to the AQF, and therefore she did have an Australian qualification as a result of study undertaken at level 7 or higher within the AQF;

    ·she believed that this qualification was conferred or awarded by an educational institution specified by the Minister for this purposes, being AICT (for her Certificate IV qualifications) and Edith Cowan University for her Graduate Diploma;

    ·she applied for the visa on 22 February 2016, and completed the Graduate Diploma on 9 December 2015, within the 6 month period immediately before the date on which she made her visa application, and thus believed that she met the Australian study requirement as she had a total of at least 2 years of study in Australia when all of her courses were taken into account;

    ·in order to be accepted into the Graduate Diploma at Edith Cowan University, she had to have completed a Bachelor degree (with or without Honours) as a prerequisite, and this was met in her case because she already held a UK Bachelor of Science degree;

    ·she believed that completing the Graduate Diploma, combined with the 2 Certificate IV courses, met the level 8 qualification according to the AQF;

    ·the Graduate Diploma of Computer and Network Security was closely related to the Master of Science (Computer Science) and the completed units were recognised by the education provider as eligible for credit towards the Masters degree;

    ·she believed that to apply for the visa, she had to have a qualification (or qualifications) from an approved institution and at a level of study comparable to a level 7 or higher in the AQF;

    ·Edith Cowan University was an approved institution and the Graduate Diploma was a qualification at level 8 within the AQF; and

    ·she also believed that her 2 Certificate IV courses were related and should be taken into account in finding that she met the 2 years of study in Australia requirement.

11. The supporting documents provided included extensive information from the AQF website regarding study levels and various Australian qualifications.

12. On 3 July 2017, the applicant provided an additional submission, in which she made the following points:

    ·she believed that she met cl.485.231 at the time she made her visa application as she had completed a Post-Graduate Diploma of Computer and Network Security, and that the AQF indicated that this is a level 8 qualification. She believed that she therefore had completed an Australian qualification at AQF level 8, and met the requirement to have an Australian qualification at level 7 or higher;

    ·her qualification was conferred by a specified educational institution and she completed it within the 6 months immediately before she made her visa application;

    ·r.2.26AC and s.5B of the Act and Regulations defined ‘degree’ as a formal education qualification, under the AQF, awarded by an Australian educational institution as a degree or postgraduate diploma;

    ·furthermore, it stated that the entry requirements into a Masters degree includes ‘satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award;’

    ·to gain entry into her Graduate Diploma course, the applicant satisfied Edith Cowan University’s entry requirements for a Master’s degree, being ‘equivalent awards’, a combination of units that she obtained from her UK BSc of IT;

    ·she believed that completing the Graduate Diploma combined with the Certificates IV met the level 8 qualification according to the AQF.  Moreover, the Graduate Diploma of Computer and Network Security was closely related to the Master of Science (Computer Science) and completed units from it are recognised by the education provider as eligible for credit towards the Masters degree;

    ·she believed that to apply for the visa, she had to have a qualification from an approved institution and at a level of study comparable to a level 7 or higher in AQF: Edith Cowan was an approved institution and the Graduate Diploma was an AQF level 8 qualification; and

    ·combined with her Certificate IV courses, she had completed 2 years of study in Australia and obtained a qualification which was at least AQF level 7 or higher in the 6 months immediately before she made her visa application.

13. The applicant appeared before the Tribunal on 12 July 2017 to give evidence and present arguments by conference telephone.  The applicant’s agent also attended by telephone and made oral submissions.

14. The applicant confirmed the contents of her written submissions and documents, and told the Tribunal that when she commenced her studies in Australia, she completed the 2 Certificate IV courses and then did enrol in the Master of Computer Science degree at Edith Cowan, which was a 2 year/4 semester course.  However, she had financial difficulties and was unable to pay for the final semester of this course.  At that time, she had completed 3 out of the 4 semesters. She was told that she was nevertheless entitled to be awarded the Graduate Diploma of Network and Computer Security on this basis.  When she consulted a migration agent, the agent advised her that she was eligible to apply for a subclass 485 visa, which would enable her to work and also to study. The agent told the applicant that she was entitled to a subclass 485 visa in the Post Study Work stream as her Graduate Diploma was embedded in a level 8 course.  The applicant said that she is working as an IT Technician for the Western Australian Water Corporation.    

15. The applicant’s agent stated that as the applicant was initially enrolled in a Masters degree, in which the Graduate Diploma (an AQF level 8 qualification) was embedded, their interpretation was that the applicant met the requirements of cl.485.231. The agent submitted that the Department’s own Procedures Advice Manual (PAM3) appeared to support this conclusion, as did information appearing on the Department’s website. The applicant and her agent undertook to provide copies of these to the Tribunal post-hearing.

16. The Tribunal discussed with the applicant and her agent its preliminary view that legally, the only courses that could satisfy cl.485.231(1) were those specified in IMMI 13/013 regardless of whether other courses were also at level 7 or 8 or higher within the AQF framework, and the difficulty was that the applicant had not actually completed her Masters degree (a qualification which is specified in IMMI 13/013) before making her visa application. Although she had completed the Graduate Diploma, which appeared to be an AQF level 7 or 8 course, it was not a qualification that was specified in IMMI 13/013 for the purposes of cl.485.231(1).

17. The applicant said that she stood by her submissions and told the Tribunal that she just wanted to complete her Masters degree, and was now in a financial position to do so.  However, Edith Cowan University refused to enrol her unless she held a subclass 485 visa or a subclass 573 Student visa, even though her bridging visa A permitted her to study in Australia.  The applicant’s agent asked the Tribunal to give careful consideration to the unique circumstances of the applicant’s case.

18. Following the hearing, the applicant and her agent provided additional material being:

    ·extract from the Department’s Procedures Advice Manual (PAM3) on The VC-485 Primary Applicant – Post-Study Work Stream (for the legislation as in force between 23 November 2013 and 1 December 2013) – under section 13 (‘Qualifications’) the following text is highlighted: ‘The applicant’s eligible qualification must have been completed as a result of undertaking study Australian Qualifications Framework (AQF) Level 7 or above.’ A table setting out qualifications and their AQF levels indicates that a Graduate Diploma is a Level 8 qualification. Further text is highlighted as follows: ‘The intention of cl.485.231(1) and the associated instrument is to support the policy objective that international students who undertake a Graduate Certificate or Graduate Diploma which articulates into, or is nested in, a Bachelor or Masters degree be eligible for the Post-Study Work stream provided they ultimately complete an eligible qualification;’ and

    ·extract from the website of the Australian Qualifications Framework website providing details of the various AQF levels.  This also indicates that a Graduate Diploma is a level 8 qualification under the AQF framework.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    A specified qualification

20. Clause 485.231(1) requires that the applicant holds a qualification the Minister has specified in an instrument in writing.

21. IMMI 13/013 specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework level 7 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.

22. It is not disputed that the applicant does not hold any of the above AQF qualifications. While she does hold a Bachelor of Science in Business IT, this was awarded in the United Kingdom and is therefore not an AQF qualification that can be taken into account for the purposes of cl.485.231 or r.1.15F (which sets out the definition of the Australian study requirement).

23. The Department found that none of the applicant’s Australian qualifications were of a kind specified in IMMI 13/013.

24. The applicant has argued that, in some circumstances, both Departmental policy (as set out in PAM3) and the AQF’s guidelines, recognise that an Australian Graduate Diploma may be regarded as a level 8 qualification within the AQF, particularly where it is being, has been or could be, completed, as part of a Bachelor or Masters qualification. She pointed to the fact that her Graduate Diploma should be viewed in this light and was appropriately classified as a level 8 qualification within the AQF.

25. While there may be merit to the applicant’s argument that a Graduate Diploma (and/or a Certificate IV) may be classified at level 7 or higher within the AQF in certain circumstances, this does not overcome the fact that neither a Graduate Diploma nor a Certificate IV (whether level 7 or higher or lower) is specified in IMMI 13/013 for the purposes of cl.485.231(1). Without a specified qualification – that is, of both the specified minimum AQF level and of a specified kind of qualification – cl.485.231(1) cannot be met.

26. The Tribunal acknowledges that the applicant was originally enrolled in a Masters degree, but finds that despite completing the majority of this course, she did not in fact complete it as her financial circumstances prevented her from completing the last semester. The Tribunal is satisfied that the units completed by the applicant in this course entitled her to the award of the Graduate Diploma qualification, but the fact remains that she has to date been unable to complete the Masters degree.

27. Based on the evidence before it, the Tribunal finds that the applicant does not have an Australian qualification of the kind set out in IMMI 13/013: that is, she has not completed an Australian Bachelor degree, Masters degree or Doctoral degree of the kinds set out in IMMI 13/013.

28. Accordingly, the Tribunal must find that she does not meet cl.485.231(1).

    Not a question regarding the Australian study requirement

29. The Tribunal considers that the issue in the present case can easily be confused with the Australian study requirement, which is only engaged in cl.485.231(3).

30. This is an anterior question: whether the qualification or qualifications which is or are the subject of cl.485.231 is or are held in the first place.

31. If a specified qualification is not in fact held, one does not arrive at consideration of the Australian study requirement. The Tribunal finds this to be the case here. As it has found that the applicant does not meet cl.485.231(1), it is unnecessary to consider whether she meets the Australian study requirement in r.1.15F and cl.485.231(3) as she is required to meet each of the subclauses in cl.485.231, and failure to meet one means that she cannot meet the clause as a whole.

32. The Tribunal acknowledges the difficult situation faced by the applicant, in that the units she completed for her Graduate Diploma were essentially also units that (had she completed the final semester) would have qualified her for a Masters degree, and that she was unable to complete them at the time she made her visa application due to her financial circumstances. It also acknowledges that under the AQF framework, the applicant’s Graduate Diploma is classified as a level 8 qualification. That she has completed high level study is also reflected in the fact that the applicant has been working for the West Australian government as an IT technician after completing her Graduate Diploma. However, the Tribunal is bound by the fact that even if the AQF recognises a Graduate Diploma as a level 8 qualification, IMMI 13/013 itself does not specify this qualification for the purposes of cl.485.231(1). As the terms of cl.485.231(1) focus on the qualification (or qualifications) ‘of a kind specified by the Minister’, IMMI 13/013 cannot be read as widening the types of specified qualifications to include qualifications not actually listed in the instrument.

33. The Tribunal notes that, in the event of an unsuccessful review application, an applicant may request Ministerial intervention pursuant to s.351 of the Act. This section confers a non-compellable, personal discretion on the Minister for Immigration to intervene to grant the applicant a visa if the Minister believes it is in the public interest to do so; for instance, if the case has unique or exceptional circumstances. Non-exhaustive guidelines providing examples of unique or exceptional circumstances for Ministerial intervention can be found on the Department’s website. It remains open to the applicant to consider these and to make a request if she and her agent feel that her case presents facts that would justify Ministerial intervention.

    DECISION

1. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

   Alison Mercer
   Member