Santi (Migration)

[2020] AATA 5541

Santi (Migration) [2020] AATA 5541 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tatiane Santi

CASE NUMBER:  1906604

HOME AFFAIRS REFERENCE(S):          BCC2018/5167569

MEMBER:R. Skaros

DATE:12 November 2020

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 criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations.

Statement made on 12 November 2020 at 11:16am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – 6 months immediately before the visa application – date on which results are finalised by the education institution – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26; Schedule 2, cl 485.221

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 Home Affairs on 6 March 2019 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 20 November 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 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 was not satisfied the evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application as required by cl.485.221.

4. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it.

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 Work stream which includes cl.485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the ‘Australian study requirement’, as defined in r. 1.15(F) in the 6 months immediately preceding the day the visa application was made.

7. The issue in the present case is whether the applicant meets cl.485.221.

   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, 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: LIN19/085.

10. The Tribunal has had regard to the material on the Department file as well as that given to the Tribunal. In this case the applicant completed a Diploma of Early Childhood Education and Care and a Certificate III in Early Childhood Education and Care at MEGT Institute.

11. In respect of the Certificate III course the applicant provided the Department a copy of her Certificate which was dated 23 June 2017 and stated that she fulfilled the requirements of that course. She also provided: a copy of her ‘Record of Competencies Achieved’ dated 23 June 2017; a copy of her Confirmation of Enrolment stating that the course was conducted over 33 weeks and completed in English; and a letter of completion dated 4 February stating that the course commenced on 10 October 2016 and was completed on 26 May 2017. The delegate did not raise any concerns in relation to the information contained in this material and it is not in contention that the applicant undertook this course between 10 October 2016 and was completed on 26 May 2017. The Tribunal also accepts these matters on the evidence.

12. In respect of the Diploma course, the applicant provided a copy of her Confirmation of Enrolment stating that the course was conducted over 92 weeks and completed in English and a copy of her Diploma dated 15 October 2018. She also provided a Record of Competencies Achieved dated 15 October 2018 which stated that the course started on 29 May 2015 and ended on 5 October 2018. Relevantly, the applicant also provided a letter from MEGT Institute entitled ‘Student Completion Letter’ which was dated 16 October 2018 and stated that the course started on 29 May 2017 and ended on 5 October 2018. The letter stated: “During this period, the student completed these courses and received an award for each.”

13. Regulation 1.15F(2) sets out the meaning of completed for the purpose of the Australian Study Requirement as having met the academic requirements for the grant for the award of the relevant course. Accordingly, the relevant date for determining whether the applicant 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 (Sapkota v MIAC [2012] FCA 981).

14. Departmental policy set out in PAM3 as it pertains to the interpretation of the Australian Study Requirement and the assessment of ‘completed’ for the purpose of r.1.15F(1) states that the date of course completion could be established by (for example): a letter to the student regarding their final exam results; notification on the Internet; notification in the newspaper; or notification on the university bulletin board. Consistent with both the wording of r.1.15F and relevant case law, PAM 3 stated that evidence is required of the date of completion of the course, not the date of conferral of the degree.

15. In this case, the delegate identified concerns with the MEGT letter of 16 October 2018 on the basis that it did not expressly state the date that the applicant met course requirements. The delegate did not consider that letter to be consistent with Departmental policy and was not satisfied it evidenced the date the applicant completed the course. This appears to be based on the use of the term ‘end date’ in the letter rather than a reference to the word ‘completed’. However, in the Tribunal’s view this overlooks the broader context in which the term ‘end date’ appears. The letter itself is entitled ‘Student Completion Letter’ and as noted above, states that the applicant was taken to have completed the course within the period stated in the letter, that is between 29 May 2017 and ended on 5 October 2018. In the context of the letter as a whole, the Tribunal is satisfied that the term ‘end date’ means the date the student is taken to have met the academic requirements for completion of the course and that award of the diploma.

16. The date the applicant completed the course is a question of fact for the Tribunal on the evidence before it. The Tribunal is satisfied that letter from MEGT Institute dated 16 October 2016 evidences the dates the applicant commenced and completed her Diploma of Early Childhood Education and Care within the meaning of r.1.15F(1). The Tribunal finds that she completed the course between 29 May 2017 and ended on 5 October 2018. The Tribunal is also satisfied that the course’s duration is over 92 weeks and was undertaken in English.

17. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

    ·     the applicant completed a Certificate IIII in Early Childhood Education (a trade qualification within the meaning of r.2.26AC(6). Further, her Diploma of Early Childhood Education and Care (a Diploma within the meaning of r.2.26AC(6)) was completed in the 6 months immediately before the application was made;

    ·     the courses were CRICOS registered courses:

    ·     the courses were completed in a total of at least 16 calendar months and as a result of at least 2 years academic study;

    ·     all instruction was in English; and

    ·     the applicant held a subclass 500 visa authorising study in Australia.

18. The Tribunal finds that the applicant's study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

19. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    R. Skaros
    Senior Member