Parmar (Migration)

[2019] AATA 4518

Parmar (Migration) [2019] AATA 4518 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Tarlika Parikshit Parmar
Mr Parikshit Manilal Parmar
Miss Genesis Christian

CASE NUMBER:  1814529

HOME AFFAIRS REFERENCE(S):           BCC2018/1233426

MEMBER:R. Skaros

DATE:11 September 2019

PLACE OF DECISION:  Sydney

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 11 September 2019 at 8:08am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream –two qualifications can each count towards the 2 year study requirement – Australian study requirements met – qualification is a registered course– decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F(1), 2.26AC, Schedule 2, cls 485.111, 485.231
Education Services for Overseas Students Act 2000

CASES
Bhatt v MIAC [2012] FCA 918
Riaz v MIBP [2013] FCCA 2244

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 2 May 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 March 2018. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.231(3) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed at least 2 academic years of study for the purpose of meeting the Australian study requirement.

4. The applicant provided a copy of the delegate’s decision record with the application for review.

5. The applicant was represented in relation to the review by her registered migration agent.

6. In response to a request for further information regarding her studies in Australia, the Tribunal received submissions and supporting documents, to which it has had regard further below.

7. The Tribunal did not consider it necessary to have a hearing in this case as it was able to make a favourable decision on the evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies the requirements in cl.485.231(3).

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

10. 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.

11. 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.

12. ‘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). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). An ‘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. For the purposes of this definition, as long as a course is registered under the ESOS Act as having a duration of 92 weeks, and an applicant has ‘completed’ that course, r.1.15F(1)(c) will be satisfied, regardless of whether completion of the course involved benefit from credits, recognition of prior learning or the like.[1] The Court’s reasoning in Riaz v MIBP suggests that this will be the case even if the prior study was not undertaken in Australia. The Court held that ‘study’ in r.1.15(1)(c) denotes the activities educational institutions prescribe for the award of a degree, diploma or trade qualification and it is for those institutions to specify what is required for a person to complete a course that will result in the conferral of a relevant qualification, including the recognition of prior learning and course credits. Accordingly, the relevant question for r.1.15F(1)(c) is whether an applicant for the visa had ‘completed’, as defined in r.1.15F(2), a course or courses that had been registered under the ESOS Act as having a duration of at least 92 weeks.[2]

    [1] See Riaz v MIBP [2013] FCCA 2244 (Manousaridis J, 20 December 2013).

    [2] Riaz v MIBP [2013] FCCA 2244 (Manousardis J, 20 December 2013) at [41] & [50].

13. The evidence before the Tribunal indicates that the applicant commenced her studies in Australia in the Master of Professional Accounting at the University of Newcastle in March 2014. She completed the equivalent of two semesters of this course and, after a short gap due to the birth of her child, she transferred her studies to Holmes Institute where she undertook the dual Master of Professional Accounting and Master in Business Administration, which she completed between 7 November 2016 and 6 November 2017.

14. The applicant provided documents issued by Newcastle University indicating that the applicant had exited the University on 15 May 2015 with a Graduate Certificate in Professional Accounting. A certificate for this qualification was issued to the applicant by the University on 15 May 2018, being when she had requested it. An academic transcript showing the subjects completed at the University of Newcastle was provided to the Department and to the Tribunal. The Tribunal also received information indicating that the Graduate Certificate is an AQF level-8 qualification and is a CRICOS registered course of 26 weeks duration.

15. In relation the applicant’s studies at Holmes Institute, the applicant provided a the letter of completion and academic transcript from the Holmes Institute in respect of the combined  Master of Professional Account and Master in Business Administration. The delegate found that each of these qualifications were registered on CRICOS for 78 weeks and as the two qualifications were undertaken concurrently and not consecutively, they could not be counted separately. On this basis, the delegate found that the applicant had not completed the courses as a result of at least 92 weeks of study and did not meet the 2 academic years requirement in r. 1.15(1)(c).

16. On review, the applicant provided a letter from the Holmes Institute explaining the course structure of the dual award for the Master of Professional Accounting and Master of Business Administration. It indicates that a student can complete the 12 subjects in the Master of Professional Accounting and can be awarded 8 credit exemptions into the Master of Business Administration, thereby leaving 4 subjects for the Master of Business of Administration to be completed. The letter states that the student would have undertaken 16 subjects, studied 4 full-time semesters and would have therefore completed the equivalent of 104 weeks of study. The applicant’s academic transcript from Holmes Instituted also indicates that she had received credits towards the combined Masters course.

17. The Tribunal considers that the 2 year study requirement can be met by completing more than one qualification. There is nothing in the legislation stating that the courses cannot be completed concurrently or that they must be undertaken consecutively. In this case, the applicant completed two distinct qualifications, a Master of Professional Accounting and a Master of Business Administration. The two qualifications were separately registered on CRICOS as being of 78 weeks duration each. As the two qualifications were registered separately on CRICOS, and can be completed independently, the Tribunal is satisfied that the two qualifications can each count towards the 2 year study requirement. Having regard to the explanation provided by Holmes Institute about the structure of the combined qualification, the Tribunal is satisfied that the applicant completed the qualifications as a result of courses that were at least 92 weeks and therefore meets the two academic years requirement.  

18. The Tribunal notes that the letter of completion indicates that two qualifications were completed between 7 November 2016 and 6 November 2017, they were therefore not completed as a result of at least 16 months of study.

19. In submissions to the Tribunal, the representative explained that the applicant had initially completed the equivalent of two terms, between March 2014 and May 2015, towards the Master of Professional Accounting at the University of Newcastle. The applicant then transferred her study to the combined Masters’ course at Holmes Institute. The applicant’s studies at the University of Newcastle, which resulted in her receiving a Graduate Certificate of Professional Accounting, were counted towards her study in the combined Masters’ qualifications at Holmes College. The academic transcript issued by Holmes Institute confirms that the applicant received exemptions for five subjects on the basis of her study at the University of Newcastle.

20. The Tribunal notes that a Graduate Certificate is not a degree, postgraduate diploma or diploma and cannot be used towards the Australian study requirement.[3] However, the applicant also completed the equivalent of two semesters of the Master of Professional Accounting at the University of Newcastle between March 2014 and May 2015.  The applicant was granted exemptions for her study at the University of Newcastle and therefore those studies should be taken into account when calculating the period within which the Masters’ courses were completed. Taking into account the applicant’s period of study at the University of Newcastle and at Holmes Institute, the Tribunal is satisfied that the courses completed by the applicant were completed in a total of at least 16 calendar months.

    [3] Bhatt v MIAC [2012] FCA 918

21. The Tribunal is satisfied on the evidence before it that the courses were delivered in English. The Tribunal is also satisfied that the applicant undertook study while in Australia as the holder of a visa authorising her to study. The Tribunal accordingly finds that the applicant met the Australian study requirement in r. 1.15F.

22. The applicant completed the qualifications on 6 November 2017 and made the application on 15 March 2018. On this basis, the Tribunal is satisfied the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

23. Given the above findings, the applicant meets cl. 485.231(3).

24. 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.

    DECISION

25. 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.

    R. Skaros
    Senior Member