Pino Villavicencio (Migration)

[2017] AATA 1605

Pino Villavicencio (Migration) [2017] AATA 1605 (12 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Vanessa Pia Pino Villavicencio

CASE NUMBER:  1711253

DIBP REFERENCE(S):  BCC2017/1589072

MEMBER:Denise Connolly

DATE:12 September 2017

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 12 September 2017 at 4:12pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate (Post Study Work) stream – Australian study requirement – Applicant provided evidence of degree completion date – cl.485.231(3) met

LEGISLATION
Education Services for Overseas Students Act 2000, s.9
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.231, cl.485.111, r.1.15F(1), rr.1.03, 1.15F, 2.26AC(6),

CASES

Sapkota v MIAC [2012] FCA 981

Griffith University v Tang (2005) 221 CLR 99

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 on 15 May 2017 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 3 May 2017. Visa Class VC contains Subclass 485. 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). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made: cl.485.231(3).

4. The applicant appeared before the Tribunal on 8 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fellow colleagues Dr Philip Hughes and Dr Marion Fajardo.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate (Post Study Work) stream which includes cl.485.231 of Schedule 2 to the Regulations. This clause requires that the applicant holds a qualification(s) of a kind specified by the Minister (cl.485.231(1)), that each qualification(s) was conferred or awarded by a specified educational institution (cl.485.231(2)) and the applicant’s study for the qualification(s) satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.231(3)). The issue in the present case is whether the applicant meets those requirements.

7. 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; and

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

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·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.

8. ‘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)). 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.

9. Regarding cl.485.231(1) the Minister has specified the qualifications in the instrument in writing , IMMI 13/013. It specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework level seven or higher:

   (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.

10. Regarding cl.485.231(2) the Minister has specified in an instrument in writing, IMMI13/031, that Australian universities and non university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when applying for the visa the applicant declared she had completed a Doctor of Philosophy (Agriculture) at the University of Sydney (the University) in the period 30 July 2012 to 31 October 2016.  However the applicant subsequently provided a completion letter from the University stating she completed the course on 4 May 2017. The delegate found that as the applicant completed her course after making the visa application, on 3 May 2017, she did not meet the Australian study requirement in the period of 6 months immediately before the visa application was made.

12. The applicant has provided a letter from the University dated 16 November 2016 confirming the applicant had submitted her thesis to the Higher Degree by Research Administration Centre on 1 November 2016. It advises the examination of the thesis could take up to 6 months.  She also provided a letter from the University dated 5 June 2017 confirming she was under examination until 4 May 2017 and that on 2 May 2017 she had submitted her final corrections and thesis resulting in meeting the academic requirements for award.

13. At the hearing the Tribunal explained that the Court in Sapkota v MIAC [2012] FCA 981 considered the definition of completion in r.1.15F. It noted the Court observed that a period of time elapses after the final grades for the course are awarded when a number of administrative steps are taken by the university without any academic effort on the part of the applicant. It explained that while the Court found the date of completion did not extend to that period, it found the date at which one is taken to have ‘achieved the necessary results’ is also not the date of submission of the final piece of assessment. The Court stated:

    There are two necessary elements to achievement of academic results. One part is the student submitting all relevant items for assessment to the education provider. The second part is the education provider assessing these items and determining for itself whether the student has in fact achieved the academic result and awarding a result. The second part is essential. A student has no legal right to the award of a qualification unless a university decides for itself that the requisite requirements have been satisfied: see Griffith University v Tang (2005) 221 CLR 99 at [96].

14. The Tribunal also explained that it may form the view the letter of 2 June 2017 deals with the first step. However it was not clear as to when it determined for itself whether the applicant had in fact achieved the academic result for the award. It noted the comment that the applicant was under examination until 4 May 2017 might suggest the University had not finally determined her academic result until that date. The Tribunal asked the applicant to comment on any concern that the University may not have determined for itself whether the applicant had achieved the academic result required for the award until 4 May 2017.

15. The applicant explained that she lodged her first draft thesis on 31 October 2016.  It is then formally under examination for 6 months. The thesis is considered by 3 different reviewers. Corrections are made during that 6 month period and the amendments are overseen by her supervisor, specified and documented. This process was finalised on 2 May 2017 and the applicant made the visa application the next day knowing the process was finalised and she would be awarded the Doctoral degree.

16. The Tribunal asked the applicant to provide further evidence from the University confirming when the University determined for itself whether the applicant had in fact achieved the academic result for the award.

17. The applicant provided further documentary evidence to the Tribunal on 12 September 2017. The applicant is an agronomist specialising in soil science, currently working at the University as a research assistant and soil scientist advisor. Her work supports the agricultural industry and environment protection in Australia.

18. The applicant has also provided a letter from Professor Alex McBratney, Director, Digital Agriculture and Soil Science, University of Sydney, her primary research supervisor. Professor McBratney confirms that the applicant satisfied the requirements for the award of a Doctor of Philosophy (Agriculture) degree on 2 May 2017.

19. On the basis of Professor McBratney’s correspondence the Tribunal is satisfied the applicant completed her Doctoral degree on 2 May 2017 and this is the completion date. The Tribunal is of the view that while the University may have previously indicated a later date, this may have been reference to administrative procedures that took place after the applicant completed the academic requirements. In this case the applicant’s supervisor Professor McBratney was supervising the ongoing amendments which had been progressively made during the 6 month examination period. He has confirmed this process was completed by 2 May 2017.

20. CRICOS records confirm the applicant’s Doctor of Philosophy (Agriculture) is a Doctoral degree of 208 weeks’ duration. On this basis the Tribunal is satisfied the applicant’s qualification meets the requirement of cl.485.231(1).

21. The Tribunal has considered the CRICOS website and is satisfied the University of Sydney is a registered institution which offer courses at degree level and above, and so cl.485.231(2) is met.

22. Having regard to the CRICOS records for the applicant’s qualification, the Tribunal is satisfied it is a registered course. A letter from the University dated 4 May 2017, on the Department’s file, confirms the applicant completed the course in the period July 2012 to May 2017, that is, in a total of at least 16 calendar months. The CRICOS website also confirms that the course is of 208 weeks’ duration, that is, at least 2 academic years’ study and the instruction was in English.  The applicant’s movement records confirm she held a student visa authorising her study during the relevant period.  Having made these findings the Tribunal is satisfied the applicant met the Australian study requirement on 2 May 2017.

23. As the Tribunal has found the applicant completed her Doctoral degree on 2 May 2017, it is satisfied she met the Australian study in the 6 months immediately before the day the visa application was made and cl.485.231(3) is met.

24. Therefore, the applicant meets cl.485.231.

25. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of 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.

    Denise Connolly
    Member