Reyes (Migration)

[2020] AATA 5535

Reyes (Migration) [2020] AATA 5535 (11 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Arlette Paula Bunagan Reyes

CASE NUMBER:  1815503

HOME AFFAIRS REFERENCE(S):          BCC2018/1180232

MEMBER:Simone Burford

DATE:11 November 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 11 November 2020 at 9:16am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – eligible qualifications – Australian study requirement – studies in the 6 months preceding the visa application – status of associate degree – equivalent work for graduates of associate degree and diploma courses – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 2.26; Schedule 2, cl 485.221, 485.222

CASES

ASIC v GetSwift Limited [2020] FCA 504
Bhatt v MIAC [2012] FCA 918
Bhatt v MIAC [2012] FMCA 317
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA
Tetley v Goldmate Group Pty Ltd [2020] FCA 913

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 9 May 2018 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, in this case a Temporary Graduate (Graduate Work) (Class VC) (Subclass 485), on 12 March 2018. Visa Class VC contains Subclass 485. For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter. 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 because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the applicant’s completed Associate Degree of Education (Early Childhood) obtained from North Metropolitan TAFE is not one of the eligible qualifications for the Graduate Work Stream as described in r.2.26AC(6).

4. The applicant appeared before the Tribunal on 26 October 2020 to give evidence and present arguments. She also provided written submissions prior to the hearing.

5. The Tribunal exercised its discretion to hold the hearing by MS Teams video conference. The hearing was held during the COVID-19 pandemic. The Tribunal is mindful that whether a hearing can or should proceed through a virtual online platform is a matter that should be determined on a case by case basis.[1] In this matter, the Tribunal formed the view that the matter could proceed via MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. Pre-hearing outreach was undertaken by the Tribunal, which established the applicant had access to appropriate technology and a suitable venue to enable a video hearing to be conducted. The applicant did not raise any concerns regarding the conduct of the hearing via video conference.  She confirmed this at the commencement of the hearing.

   [1] Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].

6. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. The hearing proceeded without interruption and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

ISSUE

1. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work Stream which include cls.485.221 and 485.222 of Schedule 2 to the Regulations. These require that:

   ·the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and

   ·that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222).

2. The issue in the present case is whether the applicant meets those requirements.

RELEVANT LAW

1. Under r.1.15F(1) of the Regulations, in order to satisfy the ‘Australian study requirement’ a person must satisfy the Minister that they have completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

   a)    that are registered courses; and

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

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

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

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

2. ‘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)).

3. Relevantly, r.2.26AC(6) provides:

   In Schedule 6D and this regulation:

   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.

   diploma means:

   (a) an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or

   (b) a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.

   trade qualification means:

   (a) an Australian trade qualification obtained as a result of the completion of:

   (i) an indentured apprenticeship; or

   (ii) a training contract;

   that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:

   (iii) part-time formal training at a technical college or a college of technical and further education; and

   (iv) employment within the meaning of:

   (A) an industrial award under a law of the Commonwealth or of a State or Territory; or

   (B) a law of a State or Territory dealing with commercial or industrial training; or

   (b) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

   (c) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In addition to providing a copy of the delegate’s decision, the applicant provided the following documents to the Tribunal on 30 May 2018:

   ·     ‘Application Status – Temporary Graduate (Graduate Work) (Subclass 485)’ letter from the Department of Home Affairs sent via email 13 March 2018.

   ·     ‘Notification of refusal of application for a Temporary Graduate (Class VC) Temporary Graduate (Graduate Work) (Subclass 485) visa’ cover letter from the Department of Home Affairs dated 9 May 2018.

   ·     Letter from North Metropolitan TAFE addressing the Tertiary Education Quality Standard of the Associate Degree in Education (Early Childhood) dated 18 April 2018.

   ·     International English Language Testing System report form dated 23 February 2017.

   ·     Certificate showing Associate Degree in Education (Early Childhood) awarded on 14 February 2018.

   ·     Letter from North Metropolitan TAFE outlining ‘Evidence of Vocational Placement’ dated 21 February 2018.

   ·     A ‘TRA Provisional Skills Assessment Application Result’ dated 8 June 2018.

2. She also provided written submissions in support of her application. The Tribunal provided the applicant with a week to provide any further evidence or submissions following the hearing.  By email dated 1 November 2020, the applicant confirmed she ‘could not find any other supporting document for my case’.  No additional evidence was submitted.

3. In her application for the visa,  the applicant stated on the application form that she had completed an Associate Degree in Education (Early Childhood) at North Metropolitan TAFE between February 2016 and December 2017. At the hearing, she confirmed she had not undertaken any other study in Australia. As the Education (Early Childhood) at North Metropolitan TAFE was the only qualification completed by the applicant in the 6 months before the application was made, the Tribunal finds that the applicant relied on the associate degree to meet the Australian study requirement.

4. The delegate found that an associate degree was not an eligible qualification for the purpose of the Australian study requirement as described in r.2.26AC(6). In written submissions to the Tribunal dated 30 May 2018, the applicant outlined the reasons why her associate degree could be used for the purpose of the Australian study requirement. The applicant submitted that she believed her course was sufficient to meet the Australian study requirement, submitting:

   The Associate Degree of Education (Early Childhood) is a registered under CRICOS and was conducted in English language and was completed in 104 weeks to support this here are the details that were taken from the website of the Department of Education of Australia ( North Metropolitan Tafe gave us letters as well that contains more information about this course and the work placement that we had for this degree …

5. The Tribunal notes that the hyperlink in the submissions did not work when tested by the Tribunal, however the Tribunal accepted the applicant’s evidence regarding the course CRICOS registration.

6. The applicant provided two letters from North Metropolitan TAFE.  One related to the work placement arrangements for the course which do not appear to be relevant to the issues in this case.  The other letter, from North Metropolitan TAFE, dated 18 April 2018, addressed ‘To whom it may concern’, stated as follows:

   North Metropolitan TAFE (NMT) delivered the Associate Degree in Education (Early Childhood) as an accredited higher education course with the Tertiary Education Quality Standards Agency (TEQSA). The Associate Degree in Education (Early Childhood) is also an approved qualification with the Australian Children’s Education & Care Quality Authority (ACECQA). ACECQA is the national authority that assist governments in implementing the National Quality Framework for early childhood and care. The NQF provides a national approach to regulation, assessment and quality improvements in the early childhood sector.

   As an ACECQA approved course the Associate Degree in Education (Early Childhood) graduates are permitted to work as an early childhood teacher, a diploma level educator or a certificate III level educator under the NQF. CHC50113 Diploma of Early Childhood and Care is also ACECQA approved and enables graduates of the Diploma to work in the same environments as graduates of the Associate Degree in Education (Early Childhood) without exception.

   At the time of enrolment in the Associate Degree in Education (Early Childhood) students who had graduated from CHC50113 Diploma of Early Childhood and Care were awarded credit for recognised learning (CRL) and received advanced standing of one (1) academic year. The CRL process requires mapping of the content across qualifications.

   Therefore, it may be rationalised that the course competencies of CHC50113 Diploma of Early Childhood and Care are embedded in the Associate Degree in Education (Early Childhood).

7. The applicant drew similarities between associate degrees and the Diploma of Early Childhood and Care course offered by the education provider. The applicant referred to the nature of the qualification she completed and the equivalent work graduates of the associate degree and diploma courses are qualified to do.

8. At the hearing, the applicant gave evidence that she thought other students of the associate degree were about to meet the Australian study requirement.  The applicant submits that the associate degree she completed meets the requirements of r.1.15F.

9. The Tribunal outlined the relevant requirements for the visa at the hearing, including the definitions of ‘degree’, ‘diploma’ or ‘trade qualification’. The Tribunal noted that the criteria for a trade qualification did not appear to apply to the applicant’s circumstances as the skills assessment provided indicated her qualification was one which would not meet the trade qualification definition and that the delegate had decided the application on the basis the applicant’s associate degree did not meet the requirements of a degree or diploma as defined under the Regulations.

10. The Tribunal discussed with the applicant that case law with respect to the Australian study requirement suggested that qualifications not mentioned in the definition of ‘degree’ or ‘diploma’ could not be relied on to meet the Australian study requirement.  The Tribunal discussed with the applicant that while the letter from the education provider indicated diploma graduates were given advanced standing for one year of study of the associate degree course and that it may be ‘rationalised’ that the course competencies of the diploma course were ‘embedded’ in the associate degree course, it did not indicate that the course requirements from both were the same or that graduates of the associate degree also met the requirements for diploma.

11. The Tribunal queried whether the coursework for the associate degree and the diploma were the same and the applicant said she didn’t know but she thought that they had all the components of the diploma course.  The Tribunal clarified that this did not mean there was a question about whether her associate degree qualified her for the work she says she is qualified to do but whether it met the requirements of the Regulations.

12. The Tribunal indicated it would allow further time for the applicant to provide further information on what the course requirements were and whether she met the course requirements for having ‘completed’ the diploma course.  Following the hearing, she advised the Tribunal she was unable to obtain any further supporting documents. She stated:

    I just wanted to extend my sincerest gratitude to you for giving me your time and looking at my case. I have loved living and working in Australia for the past 4 years. I have seen enormous growth both in my personal and professional life. I have met countless people who have touched my life, and, I hope, I have touched theirs in return.

    If I would be given the opportunity to further my stay through this visa, I would invest in my further professional growth to repay Australia for all the opportunities it has afforded me, especially considering that I work with young Australians on a daily basis.

13. No further evidence or submissions were received.

Does the applicant meet the Australian study requirement?

1. The Tribunal has considered, but does not accept, the applicant’s submissions. The Tribunal has formed the view that the definition of qualifications contained in r.1.15F(2) and r.2.26A is quite specific and does not allow for incorporation of other qualifications not expressly mentioned in these provisions.

2. The Australian study requirement in r.1.15F expressly refers to a degree, diploma or a trade qualification. The definitions of ‘degree’ and ‘diploma’ in r.2.26A do not include an associate degree.  The material submitted from North Metropolitan TAFE suggests the diploma and associate degree offered by the TAFE qualify graduates to do the same work in the childcare sector.  It also stated that it may be rationalised that the course competencies of Diploma of Early Childhood and Care are embedded in the Associate Degree in Education (Early Childhood).  However, the evidence does not establish and the Tribunal does not accept that the two courses are interchangeable, even if the applicant believes there are significant similarities between these qualifications. Further, there is no evidence that the applicant has met the requirements of the diploma such that she may have been found to have ‘completed’ that qualification.  The Tribunal notes in this regard that in any event, the evidence suggests that the diploma course requires one year of study which would fail to satisfy other elements of the Australian study requirement (r.1.15F(1)(b) and (c)).

3. The exclusion of an associate degree from r.1.15F and r.2.26A suggests an intention by parliament not to incorporate associate degree (along with other ‘missing’ qualifications such as graduate certificates) into the Australian study requirement. In this regard, the Tribunal is mindful that there had been many subsequent amendments to the migration legislation and if there was any intention to include associate degrees in the definition of a degree or a diploma, this could have been done through amending the legislation. On the material before the Tribunal there would be no basis for concluding that the omission of a reference to associate degrees was inadvertent.

4. The Tribunal notes that Departmental policy provides that in some circumstances, an associate degree that has been suitably awarded does not meet the definition of ‘diploma’ as defined in r.2.26AC(6)(b), however the policy does not elaborate on what is meant by ‘in some circumstances’.[2] While the Tribunal has had regard to the policy it finds it to be of limited assistance in the circumstances of this case.

   [2] Policy – Migration Regulations – Divisions – Div1.2-Interpretation – [Div1.2/reg1.15F] Reg 1.15F – Australian Study Requirement: issued 01/07/2019).

5. The Tribunal has had regard to the decision of the Federal Magistrates’ Court in Bhatt v MIAC [2012] FMCA 317, upheld on appeal in Bhatt v MIAC [2012] FCA 918. In that decision, Nicholls FM (as he then was) held that a ‘graduate certificate’ is not a ‘degree’, ‘postgraduate diploma’ or ‘diploma’ as defined in the Regulations because ‘the Regulations make no reference to it and make no provision for its incorporation into those terms as defined in the Regulations’.[3] At [46] His Honour drew parallels between excluding a ‘graduate certificate’ and an ‘associate degree’ from the definition of a degree. While those comments were obiter dicta in that case, applying His Honour’s reasoning with respect to the requirement that the qualification be referred to in the Regulations would, in the Tribunal’s opinion, apply to associate degrees.  In dismissing an appeal, Buchanan J observed that the relevant qualifications are ‘explicitly and comprehensively stated by regulation’ and ‘[l]ittle room is left by those who draft such regulations for the application of judgment or discretion’.[4]

   [3] Bhatt v MIAC [2012] FMCA 317 at [51], upheld on appeal in Bhatt v MIAC [2012] FCA 918. This case concerned reg 2.26A(6) but the reasoning would apply equally to reg 2.26AC(6).

   [4] Bhatt v MIAC [2012] FCA 918 at [12].

1. This does not mean that an applicant who has been awarded an associate degree could not meet one of the definitions in reg 2.26AC(6). Depending on the facts of the particular case, evidence from an applicant could support a finding that an applicant who has relied on such a qualification meets the definition of ‘degree’ or ‘diploma’ even if that qualification is not mentioned in those definitions.

2. In this case, the Tribunal considered the additional material from the education provider which suggested that requirements for the applicant’s associate degree exceed those of the diploma course offered by the provider and on that basis would meet the definition of ‘diploma’. However, the Tribunal does not accept the evidence establishes that the Applicant could be found to have met the requirements of the diploma. While it is suggested that the associate degree is a higher or more extended level of study that the diploma it does not establish that the course study for the two qualifications are identical such that the associate degree qualifies the applicant for the requirements of the diploma. The applicant’s associate degree does not meet the definition of degree.  Further, as it is not mentioned in the definition of a diploma and on the evidence the applicant could not be said to have completed the diploma course, in the Tribunal’s view it does not meet the definition in the applicant’s case.

3. The definition of ‘trade qualification’ under reg 2.26AC(6) includes an Australian trade qualification obtained as a result of completion of an indentured apprenticeship, or a training contract or a qualification of at least the Certificate III level for a skilled occupation in ANZSCO Major Group 3.

4. The Tribunal notes that the definition of ‘trade qualification’ is not limited in the same way as the definitions of ‘degree’ and ‘diploma’ and is wide enough to include a qualification such as an associate degree, depending on the particular circumstances of an applicant. The Tribunal notes that the applicant’s TRA Provisional Skills Assessment indicates her qualification was assessed for the occupation of ‘Child Care Centre Manager - 134111’.  This is a skilled occupation in ANZSCO Major Group 1.[5]  There is no information before the Tribunal to establish that the applicant’s Associate Degree in Education (early Childhood) meets the requirements of a trade qualification as defined in reg 2.26AC(6). The applicant did not suggest her qualifications would meet the definition of ‘trade qualification’.

   [5]>

   The Tribunal finds that the applicant’s associate degree is not a degree, diploma or a trade qualification and cannot be relied upon to meet the Australian study requirement in r.1.15F. The applicant confirmed in her oral evidence to the Tribunal that this is the only qualification she completed in Australia and that is the qualification she relies on to meet the Australian study requirement. As such, the Tribunal is not satisfied that the applicant completed a degree, diploma or a trade qualification in Australia. The Tribunal is not satisfied that she met the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made. Accordingly, the Tribunal is not satisfied that the applicant meets cl.485.221.

5. Having found that the applicant does not meet one of the criteria for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

6. The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.

7. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Simone Burford
Member