Nkhonjera (Migration)

[2022] AATA 4819

Nkhonjera (Migration) [2022] AATA 4819 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Carone Nkhonjera

CASE NUMBER:  1921613

HOME AFFAIRS REFERENCE(S):          BCC2019/264538

MEMBER:Amanda Mendes Da Costa

DATE:9 November 2022

PLACE OF DECISION:  Melbourne

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 9 November 2022 at 10.07am

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, 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 Home Affairs on 16 July 2019 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 23 January 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 visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because her Bachelor of Commerce degree did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made.

4. The applicant appeared before the Tribunal on 12 October 2022 to give evidence and present arguments.

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, 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 13/013. In this case, the applicant holds a Bachelor of Commerce degree 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.  In this case, the applicant’s qualification was conferred or awarded by the University of Melbourne which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

11. 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.

12. 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.

13. ‘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. 

14. The documentation provided by the applicant to the Tribunal includes the following:

    ·Testamur issued by the University of Melbourne which states that the applicant was admitted to the degree of Bachelor of Commerce on 28 July 2018.

    ·Academic Transcript issued on 31 July 2019 showing subjects undertaken by the applicant from 2013 to 2018 and stating that the applicant’s Bachelor of Commerce degree was completed on 31 July 2019.

    ·Email dated 7 September 2018 from the University of Melbourne advising the applicant that the Testamur for the award of her degree on 28 July 2018 had been posted to her.

    ·Evidence of qualification issued by the University of Melbourne on 31 July 2019, which certifies that the applicant satisfied the requirements of a Bachelor of Commerce on 31 July 2019.  It further states that applicant’s course commenced on 4 March 2013 and the course completion date was 31 July 2019.

    ·Applicant’s statement (undated).  In this statement, the applicant explains that the matters relied on by the delegate in making their decision were incorrect and that she (the applicant) completed her studies for the Bachelor of Commerce degree on 28 July 2018 and received her Testamur in absentia.

    ·The applicant asserts that she has emails which prove that she completed her course in 2018 although her completion letter from the University was recently generated.  This was because the applicant never received it via email and was forced to press the University to provide it to her.

    ·The applicant further explains that the receipts for her tests are all dated in June/July 2018 in terms of police and English language checks because that is when she completed her study.

15. Given the visa application was lodged on 23 January 2019, to meet the 6 months requirement, the applicant’s course completion date needs to be between 22 July 2018 and 21 June 2019.

16. During the hearing, the Tribunal discussed the above matters with the applicant and in particular the discrepancies between the course completion date of 31 July 2019, stated in the Evidence of Qualification and Academic Transcript (both issued on 31 July 2019) and the Testamur issued by the University of Melbourne, which states that the applicant was awarded her degree on 28 July 2018.

17. The applicant further explained that her Bachelor of Commerce degree was conferred on 28 July 2018 although she chose not to attend the ceremony.  Her Testamur was subsequently posted to her by the University.

18. The applicant explained that when the Department requested further evidence of the completion date of her studies, she requested the University of Melbourne to provide her with an Academic Transcript and evidence of qualification. The University staff who provided her with these documents (dated 31 July 2019) explained to her that they were unable to provide her with documentation containing a completion date before the date of the creation of the documents.

19. Although the Tribunal is concerned about the discrepancies in the information provided by the applicant in relation to the completion of her Australian studies it gives greater weight to the Testamur issued by the University of Melbourne in relation to the date on which the Bachelor of Commerce degree was conferred on the applicant.

20. The Tribunal also accepts the oral evidence of the applicant which confirms that her degree was conferred on 28 July 2018.

21. Based on the oral and documentary evidence before it (including the material in both the Departmental and Tribunal files), the Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

22. The Tribunal is further satisfied that the applicant’s qualification was as a result of a course that was:

    ·a registered course;

    ·completed in a total of at least 16 calendar months;

    ·as a result of at least 2 academic years study;

    ·for which all instruction was conducted in English; and

    ·while holding a visa authorising study.

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

24. Based on 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.

    Amanda Mendes Da Costa
    Member