Soerensen (Migration)

[2022] AATA 2694

Soerensen (Migration) [2022] AATA 2694 (1 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nadia Schjoetz Soerensen

REPRESENTATIVE:  Mr Walson Mathew (MARN: 1460591)

CASE NUMBER:  1916648

HOME AFFAIRS REFERENCE(S):          BCC2019/1178340

MEMBER:Wan Shum

DATE:1 August 2022

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 1 August 2022 at 12:19pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement satisfied within 6 months before visa application made – academic requirements completed before application made but certificate of completion issued after – administrative delay in processing results and issuing certificate – previous visa close to expiring – 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)

CASES
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC [2008] FMCA 409

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 June 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the Subclass 485 visa on 8 March 2019. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 evidence before it indicated that the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations which requires satisfaction of the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

4. The applicant sought review of that decision and was represented in relation to the review.

5. The applicant appeared before the Tribunal on 28 June 2022 by videoconference using Microsoft Teams to give evidence and present arguments.  The representative was available to assist throughout by videoconference.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The applicant declared on her visa application form that the most recently completed academic qualification in Australia was a Master of International Studies from the University of Sydney from 1 March 2017 to 11 February 2019.

9. As evidence of this, the applicant provided a statement from University of Sydney dated 21 March 2019 which states that she has completed the requirements for her degree and been awarded a Master of International Studies as at 21 March 2019. The completion letter includes a statement that the degree is taught in English and normally requires the completion of 96 credit points where 48 credit points is a usual fulltime load for one academic year. The letter includes enrolment details from 6 March 2017 to 19 November 2018 as follows:

2017	Semester 1	Enrolled full-time	6 March 2017 - 25 June 2017
2017	Semester 2	Enrolled full-time	31 July 2017 - 19 November 2017
2018	Semester 1	Enrolled full-time	5 March 2018 - 25 June 2018
2018	Intensive February	Enrolled full-time	22 January 2018 - 4 March 2018
2018	Intensive March	Enrolled full-time	19 February 2018 - 8 April 2018
2018	Semester 2	Enrolled part-time	30 July 2018 - 19 November 2018

1. An unofficial online academic result printed on 22 March 2019, reflects the award date for the Master of International Studies was 21 March 2019 and the award conferral date as 14 May 2019. The applicant later provided another letter from the University dated 2 May 2019 which states that she completed the Master of International Studies on 21 March 2019; having commenced her studies on 6 March 2017 and the expected graduation is in May 2019.

   Does the applicant hold a specified qualification?

2. Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds a Master degree which is a qualification specified in that instrument.

3. Accordingly, cl 485.231(1) is met.

   Was the applicant’s qualification conferred or awarded by a specified educational institution?

4. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031.

5. In this case, the applicant’s qualification was conferred or awarded by University of Sydney which the Tribunal finds is an Australian university registered on the Commonwealth Register of Institutions and Courses for Overseas Students and offers courses at degree level and above. It is therefore an educational institution specified in the relevant instrument and cl 485.231(2) is met.

   Does the applicant 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 reg 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 regs 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 (reg 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: LIN 19/085.

9. The applicant claims that she was wrongly advised to apply for her visa when she contacted the Department on 4 March 2019, and provided copies of two webmail feedback forms - being her complaint lodged with the Department and its response. 

10. In her complaint submitted on 6 July 2019, she provided an outline of the events in a chorological order leading to her complaints, including that: after submitting her dissertation project at the end of December 2018, she received her marks on 11 February 2019. She contacted the Department on 4 March 2019 as her visa was due to expire on 21 March 2019 and she was yet to receive her certificate of completion from the university.

11. In another email on 3 July 2019, the applicant again states that she received an email from her university course coordinator on 11 February 2019 that she had received her final marks for the degree and it was the process of entering these marks into the appropriate systems at the university led to a delay in receiving her final certificate on 21 March 2019. After considering these claims, the delegate found that the applicant had not completed her studies until after the application was made.

12. The applicant has provided evidence of communications with Dr Stewart Jackson, Senior Lecturer at the Department of Government and International Relations, School of Social and Political Sciences regarding her final grade. In his email of 14 June 2020, he advises that the last unit was GOVT6341, which by reference to her unofficial course result history refers to Dissertation Part 2. Dr Jackson relevantly states that the applicant was waiting for the result of that unit as he had sent it to a third marker to check the grade, that it was the only outstanding grade for her degree so was the last grade required for graduation and for completion of her Master of International Studies. He refers back to an email of 11 February 2019, a copy of which was provided on review, in which he had informed the applicant of the ‘last grade in for the capstone’ and that her final mark for that unit was 73.5%.

13. During the hearing the applicant explained that she only had one subject in her final semester because she had prior learning recognised by the University. She confirmed that the final subject was her Dissertation and explained that Dr Jackson, who is the degree coordinator, is not allowed to mark her dissertation and had to send it to two others. The applicant claims that she was informed of her result for that final subject on 11 February 2019. She had then contacted the Department advising her final results had not been updated on the University systems and was told that she was not able to obtain an extension on her student visa as she had already received her final marks. In respect of the two letters or statements from the University which set out the completion date of 21 March 2019, the applicant explained that one of the letters was for the purpose of providing the Danish Government who had partially funded her study in Australia. The Tribunal advised that it had contacted the University and was awaiting a response.

14. The applicant confirmed that no further work was done by her after that date and stated that she had in fact submitted the assessment in December 2018, but that due to Christmas and the summer holidays it was not marked until February 2019. The Tribunal accepts that this is a common occurrence during the academic year. On 29 July 2022, the Tribunal received a response from the University and Dr Jackson confirmed that the final Assessment for the unit GOVT6341 undertaken by Ms Soerensen was submitted on 16 December 2018. He explained that because the unit is a dissertation it was sent to two markers and then due to the Christmas-New Year shutdown period of the University, the first grade was not received until 31 January 2019, with the second received on 11 February 2019. Dr Jackson advised that he entered the grades into the Faculty Results Processing system the same day, being the grade of 73.5% (which the system automatically rounds to 74%).

15. On the information before the Tribunal, the Tribunal accepts that there was no further assessment by the University of the applicant’s work after 11 February 2019. It appears that the later completion date of 21 March 2019 involved administrative steps rather than academic steps.

16. The Tribunal finds the academic requirements were met by the applicant on 11 February 2019: Venkatesan v MIAC [2008] FMCA 409 and Sapkota v MIAC [2012] FCA 981.

17. According to PRISMS records, the Master of International Studies course is registered on CRICOS for a duration of 104 weeks which means that the course was registered for more than 2 academic years study. The Tribunal finds that the Master of International Studies course is a registered course as the University of Sydney is a registered provider. The course was completed by the applicant in around two years which means it was completed in a total of at least 16 months. The Tribunal finds that all instruction was in English and that the applicant undertook this study while in Australia as the holder of student visas authorising the applicant to study. The Tribunal thus finds that the applicant satisfied the Australian study requirement.

18. As the application was made on 9 March 2019, the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, cl 485.231(3) is met.

19. On the basis of the above findings, the Tribunal finds that the applicant meets cl 485.231. 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 criterion for a Subclass 485 visa:

    ·cl 485.231 of Schedule 2 to the Regulations.

    Wan Shum
    Member