Olorunfemi (Migration)

[2022] AATA 4169

Olorunfemi (Migration) [2022] AATA 4169 (13 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tayo Alexandra Olorunfemi

CASE NUMBER:  1929290

HOME AFFAIRS REFERENCE(S):          BCC2019/3746424

MEMBER:Alan McMurran

DATE:13 October 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 13 October 2022 at 1:36pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant’s study 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 lodged for review on 16 October 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 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 is a 38-year-old citizen of the Federal Republic of Nigeria, currently residing in Australia on a Bridging visa, pending the outcome of this review and his visa application.

3. The applicant applied for the visa on 29 July 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

4. 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 that the applicant obtained an eligible qualification for the Post-Study work stream and that he therefore did not meet the requirements of the regulation.

5. The applicant appeared before the Tribunal by video conference on 13 October 2022 to give evidence and present arguments. The applicant did not require an interpreter and gave his evidence in English. The Tribunal did not detect any language issue arising during the hearing. The applicant confirmed he was ready to proceed, had provided his evidence and submissions, and did not seek an adjournment.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The Tribunal has available for consideration extracts from the Department and the Tribunal files, the Act and Regulations, the applicant’s written submission and oral evidence and relevant policy considerations.

   Does the applicant hold a specified qualification?

9. 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 Master of Planning degree combined with a Graduate Certificate in Property Development awarded by the University of Technology (“UTS”) in Sydney.

10. The applicant gave evidence at the hearing as to his study in Australia. He explained his background saying that his family resides in Nigeria (his father and his sister), and his partner who resides in Ghana, working there as a food and beverage manager. He has an uncle living in Sydney who is an Australian citizen.

11. He said he had completed his education in Nigeria obtaining a Bachelor degree in architecture and a related Masters degree in 2014. He explained that he had embarked on a university education towards a career working on environmental issues. His particular interest is focused on urban planning and design.

12. He explained that he had worked as a project manager for an architectural firm in Lagos, Gothic Lens Consortium, for three years from 2014 until 2017, when he came to Australia. He said his goal was to learn more about property planning and development from the Australian education system, and obtain some related work experience, to take back to Nigeria for his own community which is struggling with urban planning and design in overcrowded cities and environments.

13. He explained that he applied for a course at UTS online to study for a Masters degree in property development. His application was successful, and he applied for the student visa in June 2016 following which he arrived in Australia in July 2016, immediately commencing his studies. He said he lived with his uncle in Sydney on his arrival and stayed with him until late 2017. He said his uncle helped support him while he was studying. He said he was also able to do some work online for his Nigerian employer in this period.

14. While undertaking the course for the Masters degree in Property Development, the applicant decided that following enquiries he had made at UTS about the components for each course, he would change his degree to Master of Planning. He was asked why he made the change which occurred in late 2016. His academic record discloses that he completed the Spring and October sessions in 2016 in the Master of Property Development course and commenced the planning degree in 2017.

15. In response, the applicant explained that the focus in the property development degree was on costings and estimations and marketing analysis, with a view to the financial efficacy of particular projects. The planning degree components, however, were more aligned with his particular interest in urban design, architecture and planning, and which included building design and insights into the law relating to the regulation of building design and urban development in Australia.

16. He was asked why he then sought to complete the Graduate Certificate in Property Development. He explained that it included components he had omitted from his property development course when he changed degrees, including important cost modules and estimation processes, which he felt were important to provide him with a “total package” for his profession as an architect and in property development and urban planning.

17. He explained that UTS saw his enrolment as a “single course” until conclusion when he qualified for the Master of Planning in November 2018, and the Graduate Certificate in July 2019. He explained that the graduate certificate course work was similar to the study he had undertaken in both degree components. Notably, his UTS record lists all his coursework and obtained qualifications as a single academic record indicating it was obtained in a continuous single enrolment.

18. The difficulty for the applicant was that he could not commence the Graduate Certificate course until March 2019 and following completion of the degree in late 2018. He agreed that the Graduate Certificate could be seen as a single qualification, but that taking into account his goal to be fully qualified in property development as well as urban planning and design, it was necessary for him to complete both these courses, and which he did consecutively and without any interruption to his student timeline. He said that he would not have been appropriately qualified in costings, and estimations without the units he had completed in the graduate certificate course. That certificate course included credit for the previous study undertaken in the Master of Property Development degree.

19. The Tribunal asked the applicant why he thought he had met the requirement for a specified qualification, by having acquired the graduate certificate after he had completed his degree. He submitted that the Tribunal should regard his study embracing both qualifications as integral to his objective to become qualified as an architectural planner and urban designer.

20. He reiterated that he needed the “complete package” to enhance his architectural background and employment opportunities, and that the components of the Graduate Certificate significantly align with those for the property development degree and are closely related with urban planning and design and the profession of architecture. He said that he had not completed all components for the “package” until completion of the Graduate Certificate course in July 2019. He said because of the structure of the coursework, you cannot enrol in both degrees (planning, and property development) and the certificate (graduate in property development) simultaneously, as referred to above, and that they need to be completed consecutively.

21. The applicant was asked whether he had sought any migration assistance at the time of his enrolment and during his study. He said he had not sought any assistance and was focused on his academic achievements and his study during that period from July 2016 until July 2019. He said he was not thinking about whether he was meeting a migration requirement, but rather was focused on whether he was meeting his career requirement to become specialised in urban planning and property development through the Australian university education system.

22. The Tribunal has listened carefully to the applicant’s evidence which was not before the delegate. Cl. 485.231 sets out that the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing. The relevant instrument, IMMI 13/013, specifies for the purposes of the subclause that the qualifications resulting from study undertaken at an AQF level 7 or higher are:

    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

23. Policy provides that where education providers, such as UTS, provide packaged programs of study and which in this case, result in the award of a degree and graduate certificate, such qualifications may fall within the meaning of regulation 1.1 5F in order to satisfy the Australian study requirement (as set out below).

24. The Tribunal finds that the applicant’s Master of Planning degree falls within the specification, as does the Master of Property Development. The Tribunal is further of the view and finds that the Graduate Certificate in Property Development, closely related to both degree courses is integral to the applicant’s overall qualifications in property development, and urban planning and design and for his chosen profession of architecture.

25. It is possible to conclude in the circumstances of this case that the total study, undertaken at degree level by the applicant, amounts to the completion of tertiary study necessary for his career in a single discipline, namely, architecture and the related fields of property development and urban planning and design. This follows the wording in the clause which requires “a qualification” which will suffice for the purposes of meeting the requirement.

26. The Tribunal finds it is satisfied that the Graduate Certificate being an integral part of the applicant’s closely related studies for his degree qualifications can be used to satisfy Australian study requirements (r.1.15F & r.2.26AC(6)), and that the Master’s degree and the Graduate Certificate can be used in combination to meet the Australian study requirements.

27. Accordingly, the Tribunal is satisfied in this case that cl 485.231(1) as to the relevant “qualification or qualifications” is met.

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

28. 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 IMMI13/031 which specifies that for the purposes of subclause 485.231 (2) of the Regulations, Australian universities are eligible educational institutions if registered on the Commonwealth Register of Institutions and Courses for Overseas Students (“CRICOS”) and offer courses at degree level and above.

29. In this case, the Tribunal finds that the applicant’s qualification was conferred or awarded by UTS which is an educational institution specified in that instrument[1].

    [1] CRICOS number 00099F University of Technology Sydney

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

    Does the applicant meet the Australian study requirement?

31. 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.

32. 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.

33. ‘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).

34. In this case, the applicant claimed to have completed a Master of Planning on 26 November 2018 and a Graduate Certificate in Property Development on 16 July 2019.

35. The applicant provided copies of academic transcripts issued by UTS on 22 July 2019 with a certification from the Deputy Vice-Chancellor. The certification confirms the applicant has completed all assessment tasks and/or requirements for admission to the award. The accompanying UTS academic record sets out the applicant’s course results for each of the three courses in which he was enrolled during the relevant period until July 2019.

36. The Tribunal is further satisfied on the evidence that the degree course undertaken by the applicant at UTS was a degree course within the meaning of reg. 2.26AC (6) and that it was undertaken at UTS which is a registered CRICOS course provider for overseas students as required by reg.1.03.The course involved a total of approximately 92 academic weeks of study between July 2016 and July 2019, the total period of enrolment being for 36 calendar months in that period and the course was conducted entirely in English. The course was conducted in Australia while the applicant held a student visa permitting study during this period.

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

    ·The applicant's Master of Planning and Graduate Certificate in Property Development in this instance was a packaged course provided for within the meaning of reg 2.26AC(6) and which included credits for the transfer from one course to the other and for completion of the related Certificate;

    ·the course was a registered course within the meaning of reg 1.03;

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

    ·all instruction was in English; and

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

38. The Tribunal is satisfied that the requirements of reg 1.15F are met. Further, the visa application was made on 29 July 2019 and the applicant completed the course on 16 July 2019, which is within the period of 6 months immediately before the date the application was made. Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement within the relevant period and that the requirements of cl.485.221 are met

39. For the above reasons and based upon the above findings, 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.

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

41. 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

42. 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.

    Alan McMurran
    Member