Ngwaba (Migration)

[2018] AATA 5486

Ngwaba (Migration) [2018] AATA 5486 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Uchechukwu Ngwaba

CASE NUMBER:  1725358

HOME AFFAIRS REFERENCE(S):           BCC2017/3009499

MEMBER:Jennifer Cripps Watts

DATE:12 November 2018

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 12 November 2018 at 10:13am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – relevant study qualification – Australian study requirement – registered and completed course six months immediately before application – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, rr 1.03, 1.15F, 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 and Border Protection on 17 October 2017 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 21 August 2017. 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 (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 visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had completed his relevant study qualification in the six months prior to lodging his Post Study Work Stream visa application: cl.485.231.

4. The Tribunal reviewed the files and considered all relevant facts and matters, including detailed submissions from the applicant’s migration agent which were accompanied by additional documentary evidence, and formed the view that a positive decision could be made ‘on the papers’.  The Tribunal has proceeded to a decision without requiring the applicant to attend a hearing to give oral evidence.

5. The applicant was represented in relation to the review by his registered migration agent, Mr Michael McCrudden, Migration Agent Registration Number 0429447.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 six 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 13/013.  In this case, the applicant holds a Doctor of Philosophy 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.

10. In this case, the applicant’s qualification was conferred or awarded by Macquarie University, Sydney Australia, which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students offering courses at degree level and above (number 00002J).

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

    Does the applicant’s study for the specified qualification 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 six months immediately before the day the visa application was made.

13. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that 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 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 two 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. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). For the purposes of this case, ‘two 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: IMMI 09/040.

15. The reason the visa was refused is because the delegate was not satisfied that the applicant had completed his course within the six months immediately before the application that is the subject of this review was made.  There was dispute and disagreement about when he actually “completed” the course. Relative to the date of application, the applicant needed to have completed his course before 21 August 2017.

16. The applicant first arrived in Australia holding a subclass 500 student visa on 13 February 2014.  The student visa was valid from 6 February 2014 to 15 October 2017.  Within that period, while holding a student visa, the applicant completed his Doctor of Philosophy at Macquarie University.  He has provided documentary evidence that indicates he commenced the course in February 2014 and that he completed the course in August 2017.

17. At the time of application, the applicant provided evidence that he had commenced the Doctor of Philosophy he relies on for the grant of the visa in February 2014 and that he had completed all course requirements.  However, a letter he provided from Macquarie University dated 29 September 2017, which is well beyond the 485 visa application date, stated that the applicant had qualified for the Doctor of Philosophy on 20 September 2017.  Giving weight to this evidence to establish a date upon which the delegate found the applicant had completed his course, the visa was refused in October 2017.

18. The Tribunal has given positive weight to the following evidence in reaching a decision that the applicant had completed all course requirements for the award of the degree before he made the 485 application that is the subject of this review:

    a.Letter from Dr Ren Yi, dated 18 August 2017, who states and recommends that the applicant’s thesis ‘A Right to Universal Health Coverage in Nigeria?  A Transformative Proposal from a Comparative Perspective’ be accepted as satisfying the requirements for the award of PhD.  He offers his congratulations, indicating to the Tribunal that Dr Yi considered, on 18 August 2017, that the applicant had completed his thesis and that no further steps would need to be taken by him to have the PhD conferred. 

    b.Letter from Macquarie University dated 22 August 2017 stating that the applicant has completed requirements for the Doctor of Philosophy and that executive approval should be completed by 19 September 2017.

19. The Tribunal is satisfied that all steps taken after 18 August 2017 were taken by the university, and not the applicant, and that anything done after this date, including executive approval, was administrative processing.  That is, the applicant was not required to do anything to his thesis (to meet course requirements), after 18 August 2017, before it was approved by the university executive in September.  The applicant submits that since 18 August 2017 he has continued to work at the university and has been referred to as ‘doctor’ since that date.  It would seem unlikely, in the Tribunal’s view, that Macquarie University would allow an academic to refer to himself as ‘doctor’ if he was not qualified to do so. 

20. The Tribunal, on the evidence, which has been carefully considered, has formed a view and is satisfied that the applicant, notwithstanding that he officially ‘qualified’ for the degree on 19 September 2017, completed all course requirements before he applied for the 485 visa that was refused and is the subject of this review.

21. Having considered all relevant facts and matters, the Tribunal is satisfied:

    a.The applicant completed a degree in the six months immediately before the application was made;

    b.The specified qualification was as a result of a course that was a registered course (as defined in r.1.03);

    c.That the applicant completed the course (as defined in r.1.15F(2)) in a total of at least 16 calendar months as a result of at least two academic years’ (as specified) study, for which all instruction was conducted in English, while holding a visa authorising study.

22. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the six months immediately preceding the date of the visa application.

23. Accordingly, cl.485.231(3) is met.

24. 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

25. 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.

    Jennifer Cripps Watts
    Member