Ossa Useche (Migration)

[2021] AATA 4124

Ossa Useche (Migration) [2021] AATA 4124 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Diana Carolina Ossa Useche
Mr Manuel Esteban Beltran Munoz

CASE NUMBER:  1913632

HOME AFFAIRS REFERENCE(S):          BCC2019/1292051

MEMBER:Mary Sheargold

DATE:12 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl 485.231(3) of Schedule 2 to the Regulations

Statement made on 12 August 2021 at 2:44pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Nursing – course completion date – completion of final placement – delays in university administrative processes – met all the requirements for the award of degree – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; 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 21 May 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 14 March 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 visas because the first named applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because she did not provide evidence that she had completed a qualification within 6 months immediately before the day the application was made.

4. The first named applicant appeared before the Tribunal by telephone on 11 August 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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 first named applicant satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

   Does the applicant meet the Australian study requirement?

8. 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.

9. 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.

10. ‘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 (Cth): LIN 19/085.

11. The applicants applied for the visa on 14 March 2019.  At the hearing, the first named applicant explained that she had completed her final placement for her Bachelor of Nursing degree on 15 February 2019, but that delays by the university administration had meant her course completion was not recorded until April 2019.  The first named applicant’s evidence was that she had to apply for this visa before the expiration of her Subclass 573 visa without the course completion being confirmed because the university would not give her a certificate of enrolment to apply for an additional student visa whilst awaiting the course completion given she had completed the requirements for her Bachelor of Nursing degree already.

12. Prior to the hearing, the applicants provided evidence in the form of emails between the first named applicant and various administrative staff at the Australian Catholic University dated between February and April 2019 demonstrating the first named applicant’s increasingly desperate efforts to obtain a course completion letter in support of this visa application.  A letter from Associate Professor Alicia Evans (the then Head of the School of Nursing, Midwifery and Paramedicine) was eventually provided to the applicants outlining that the first named applicant had completed her final placement on 8 March 2019 but that due to delays in the university’s administrative processes, she was not marked as having completed her course until 11 April 2019.

13. At the hearing, the Tribunal expressed its concern that although A/Prof Evans had noted that the first named applicant had completed her placement on 8 March 2019, there was no definitive statement that she had in fact met all the requirements for the award of her Bachelor of Nursing degree as at that date.  The Tribunal asked the first named applicant if she wished to seek further clarification from the university as to whether or not she had completed her course prior to applying for this visa.  The first named applicant resisted the Tribunal’s request, arguing how difficult she had found it to get the letter she had already supplied, but eventually agreed to contact the university again. 

14. On 12 August 2021, the applicants provided a letter from Professor Elisabeth Jacob, Head of School, School of Nursing, Midwifery & Paramedicine (Vic) dated 11 August 2021.  Professor Jacobs’ letter explains that the first named applicant completed her final placement for her final subject on 15 February 2019, and that her result was submitted on 22 February 2019.  Professor Jacobs states: “Ms Ossa Useche had met all the requirements of the Bachelor of Nursing course prior to the 8^th of March 2019.”

15. Based on the evidence before it, the Tribunal is satisfied that the first named applicant’s degree was completed in the 6 months immediately before the day this application was made.

16. The Tribunal is satisfied that the Bachelor of Nursing degree is a registered course, being courses of education provided by institutions that are registered under Division 3, Part 2 of the Education Services for Overseas Students Act 2000 (Cth) to provide the course to overseas students. Therefore, r.1.15F(1)(a) is met.

17. Paragraph 1.15F(1)(b) of the Regulations requires that the qualifications to be relied upon to satisfy the Australian study requirement were completed as a result of a course or courses of study in a total of at least 16 calendar months.  The evidence before the Tribunal is that the first named applicant studied for her Bachelor of Nursing degree from March 2016 to February 2019.  Therefore, the total time take to complete the courses for the award of the degree was greater than 16 calendar months, and the requirement in r.1.15F(1)(b) is met.

18. The evidence before the Tribunal is that the Bachelor of Nursing degree undertaken at the Australian Catholic University has a duration of 156 weeks.  Therefore, the first named applicant has completed at least 2 academic years of study, and the Tribunal is satisfied that the course language for both qualifications was English.  Accordingly, the Tribunal is satisfied that the requirements in rr.1.15F(1)(c) and (d) are met.

19. Based on Departmental records, the Tribunal is satisfied that the first named applicant held a Subclass 573 student visa authorising her to study whilst undertaking her qualification.  Therefore, r.1.15F(1)(e) is met.

20. Based on all the evidence before it, the Tribunal finds that the first named applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

22. On the basis of the above findings, the Tribunal finds that the first named applicant meets cl 485.231(3). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicant.

    DECISION

23. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl 485.231(3) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member