Ong-Palsson (Migration)

[2019] AATA 760

Ong-Palsson (Migration) [2019] AATA 760 (3 January 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Emma Ong-Palsson

CASE NUMBER:  1621619

DIBP REFERENCE(S):  BCC2016/3086146

MEMBER:Warren Stooke

DATE OF DECISION:  3 January 2019

DATE CORRIGENDUM

SIGNED:9 January 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘date of decision: 3 January 2018’ should be replaced with words ‘date of decision: 3 January 2019’.

Warren Stooke
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Emma Ong-Palsson

CASE NUMBER:  1621619

HOME AFFAIRS REFERENCE(S):          BCC2016/3086146

MEMBER:Warren Stooke AM

DATE:3 January 2018

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 03 January 2019 at 5:23pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement completed in the 6 months prior to visa application – no further requirements of an academic nature – advice regarding the completion of studies – decision under review remitted       

LEGISLATION

Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.231, rr.1.03, 1.15, 2.26

CASES

Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC [2008] FMCA 409

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 2 December 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 16 September 2016. 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 applicant had completed her course on 21 September 2016, based upon the university’s academic transcript, which was five days after the applicant lodged her application .

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

   ISSUE

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which includes cl.485.221 of Schedule 2 to the Regulations, relying on completion of a number of qualifications in Australia. Clause 485.221 requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the visa application was made.

6. 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:

   (a) are registered courses; and

   (b) were completed in a total of at least 16 calendar months; and

   (c) were completed as a result of a total of at least two academic years study; and

   (d) for which all instruction was conducted in English; and

   (e) the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

7. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). For the purposes of this case, ‘2 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.

8. Regulation 2.26AC(6) provides as follows:

   “degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:

   (a) the entry level to the course leading to the qualification is:
   (i) in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and
   (ii) in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and
   (iii) in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and
   (iv) in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and
   (b) in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.”

   
   
   
   
   
   

9. Regulation 1.15F(2) defines the term ‘completed’ in relation to a degree, diploma or trade qualification as follows:

   (2) In this regulation:

   completed

   , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

   
   

   Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

10. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC[2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. The term ‘completed’ was also considered in Sapkota v MIAC[2012] FCA 981 where Cowdroy J held the relevant date for determining when a student has completed the academic requirements is ‘the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution’. The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.

11. It follows that the issues to be determined by the Tribunal are:

    (a) Does the applicant meet the Australian study requirement? And, if so,

    (b) Was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application?

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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 Ph.D. Medicine, which is a qualification specified in that instrument.

14. Accordingly, cl.485.231(1) is met.

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

15. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister.

16. The applicant provided evidence that on 9 September 2016, Associate Professor C.A. Reid, the Chair of Examiners, at The Florey Institute, advised the applicant that he was happy to pass the thesis submitted by the applicant and congratulated the applicant regarding the completion of studies. [Tribunal Folio – 34]. As such, the Tribunal is satisfied that the criteria enunciated in Venkatesan v MIAC[2008] FMCA 409 and Sapkota v MIAC[2012] FCA 981 to establish when a course is completed have direct application and relevance in this case. Consistent with the views of Burchardt FM, the Tribunal acknowledges that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. Hence, the administrative act of conferring the qualification on 21 September 2018 would not, in the Tribunal’s view, prejudice the applicant’s actual completion of studies that Associate Professor Reid acknowledged on the 9 September 2016.

17. On this basis, the Tribunal is satisfied that for the purposes of r.1.15F(2) of the Regulations, the applicant completed the course on 9 September 2016, which is seven days before the applicant submitted her application and within six months of the completion of her course/thesis.

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

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

19. 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.

20. 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 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.

21. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). For the purposes of this case, ‘2 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 – Federal Register of Instruments - Skilled visas.

22. The Tribunal is satisfied, on the basis of the evidence submitted, that:

    1)the applicant completed a post-graduate degree (as defined: see r.2.26AC(6)) in the 6 months immediately before the application was made, and

    2)that the specified qualification was as a result of a course(s) that was:

    a)    a registered course (as defined: see r.1.03)

    b)    completed (as defined: see r.1.15F(2)) in a total of at least 16 calendar months

    c)    as a result of at least 2 academic years (as specified) study

    d)    that all instruction was conducted in English, and

    e)    that the applicant undertook her course of study at the Florey Institute whilst holding a visa authorising study.

23. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

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

25. 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

26. 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.

    Warren Stooke AM
    Member