Sitienei (Migration)

[2019] AATA 4668

Sitienei (Migration) [2019] AATA 4668 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Gloria Jepkirui Sitienei

CASE NUMBER:  1925807

HOME AFFAIRS REFERENCE(S):           BCC2019/3535215

MEMBER:R. Skaros

DATE:9 October 2019

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(3) of Schedule 2 to the Regulations.

Statement made on 09 October 2019 at 2:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement in 6 months preceding application – error in University’s documentation – requirement satisfied – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)

CASE
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 26 August 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 15 July 2019. 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 visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed the Australian study requirement in the 6 months immediately preceding the date of the visa application.

4. 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. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

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

6. 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.

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,

   ·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.

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)). 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].

9. Evidence before the Tribunal includes statements and letters of confirmation from Edith Cowan University (the University) dated 15 July, 26 July and 6 September 2019. In this material, the University confirms that the applicant undertook and completed a Masters of Project Management with CRICOS code 079106D, that was commenced on 27 July 2015, had a full time study load of 2 years and was conducted and assessed wholly in the English language. The Tribunal notes that the course’s registered duration is 104 weeks.

10. The Tribunal notes that the University’s letter dated 26 July 2019 states that the applicant completed all the requirements for the award of the course on 24 July 2019. The delegate found that, as this was after the date of the visa application, the applicant did not satisfy cl.485.231(3). However the Tribunal received further information from the University in its letter dated 6 September 2019. In that letter, the University explained that an error with its online system led to the applicant’s marks being unavailable for ratification at the Board of Examiners on 9 July 2019 and that they were taken to a subsequent Board on 24 July 2019. The University confirmed that the applicant’s results were entered in its marking sheets prior to 11 July 2019 and that the applicant had indeed passed all the units at this point. The Tribunal subsequently confirmed the content of this letter with its author, the Associate Dean Teaching and Learning, on 16 September 2019.

11. The Tribunal is therefore satisfied that the applicant completed a registered course, that it was completed in at least 16 calendar months and as a result of at least 2 academic years and with all instructions completed in English. Having regard to the Department’s electronic records, the Tribunal is satisfied that the applicant completed the course whilst the holder of a visa authorising her to study. Accordingly, the Tribunal finds that the applicant met the Australian study requirement in r.1.15F.

12. The Tribunal has found that the applicant completed her course just prior to 11 July 2019 and made the application for the visa on 15 July 2019. 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.

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

14. 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

15. 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