Salivio (Migration)

[2017] AATA 746

Salivio (Migration) [2017] AATA 746 (9 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nheil Janel Salivio

CASE NUMBER:  1613122

DIBP REFERENCE(S):  BCC2016/2159958

MEMBER:Catherine Carney-Orsborn

DATE:9 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2017 at 4:13pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Nurse – Course not completed within 6 months preceding visa application date

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.221, cl 485.222

CASES
Sapkota v MIAC [2012] FCA 981

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 9 August 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 24 June 2016. 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 at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because they did not satisfy the Australian study requirement as the Bachelor of nursing qualification was not completed in the period of 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 12 April 2017 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.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 secondly, 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). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

8. 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.

9. ‘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 (IMMI 09/040).

10. The applicant lodged her application for a Temporary Graduate subclass 485 visa on 24 June 2016.

11. The applicant supplied an academic transcript for a Bachelor of Nursing from the University of Technology Sydney as well as an award certificate and academic transcript for a Certificate III in Health Services Assistance from Nurse Training Australia.  A letter of completion for the Bachelor of Nursing was provided which listed the 14 December 2015 as the official results release date.

12. The Certificate III in Health Services Assistance is not a CRICOS course and cannot satisfy the study requirement.

13. The Bachelor of Nursing qualification is a CRICOS registered course however based on the completion date provided by the University of Technology was not completed within the period of six months ending immediately before the day the application was lodged.

14. The applicant in submissions stated that the completion letter is dated 8 January 2016 and this is the date she received information she had satisfied the requirements. The applicant provided a copy of this letter to the Tribunal.

15. The Tribunal discussed with the applicant the definition which was addressed 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 institution.

16. After the hearing the Tribunal contacted the education institution and requested they supply the completion date for the applicant’s Bachelor of Nursing degree.

17. The University of Technology stated in writing that the applicant completed the course on 14 December 2015.

18. This information was put to the applicant pursuant to an s.359 (A) letter. The applicant responded with submissions that she was notified of the completion date by the letter of completion dated 8 January 2016. She further stated that she is working as a nurse, is doing an exemplary job and wants to continue to stay in Australia.

19. The Tribunal has considered those submissions. The Tribunal is sympathetic to the applicant’s plight and accepts that she may be a conscientious and hardworking nurse however given the information before it the Tribunal has no discretion to make any other finding other than she has not satisfied the requirement as set out in cl.485.221.

20. The Tribunal has before it a letter of completion from the institution as well as the applicant’s student academic record which indicate that the institution considered she completed her studies on 14 December 2015.  The Tribunal finds that the completion date was 14 December 2015.

21. 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

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

    Catherine Carney-Orsborn
    Member