Tsingano (Migration)

[2017] AATA 459

Tsingano (Migration) [2017] AATA 459 (27 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shamiso Melissa Tsingano

CASE NUMBER:  1420613

DIBP REFERENCE(S):  BCC2014/2180577

MEMBER:Rania Skaros

DATE:R. Skaros

PLACE OF DECISION:  Sydney

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

Statement made on 27 March 2017 at 4:27pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Study requirement – 6 month preceding visa application date – Bachelor of Laws/Bachelor of Science – Graduate Diploma of Legal Practice – Degree completed after visa application lodgement

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.221, r 1.15F(1)

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 2 December 2014 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 26 August 2014. 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 the delegate was not satisfied that the applicant met the Australian study requirement’ in the 6 months immediately preceding the day the visa application was made.

4. The applicant appeared before the Tribunal on 7 March 2017 to give evidence and present arguments.

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

   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 include cl.485.221 of Schedule 2 to the Regulations. This requires the applicant to have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221).

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, 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)).

9. The applicant indicated in her application that she completed a Bachelor of Laws/Bachelor of Science at Murdoch University in August 2012 and a Graduate Diploma of Legal Practice from the College of Law in July 2014. A letter of completion from Murdoch University was provided indicating that the applicant completed the Bachelor of Laws/Bachelor of Science on 8 August 2012.  

10. The issue in this case turned on whether the applicant ‘completed’ the Graduate Diploma of Legal Practice in the 6 months immediately before the application was made.

11. A letter from the College of Law was provided to the Department indicating that the course ended on 6 December 2013 and that the applicant went on to complete the work experience component so as to satisfy all the requirements. The Department wrote to the applicant requesting her to obtain a revised letter of completion from the College of Law which specifies the date that all the requirements of the course were completed.

12. The applicant provided to the Department a letter from the College of Law dated 22 October 2014 stating that the applicant completed the coursework component on 6 December 2013 and that to satisfy all the requirements of the program she had to complete the work experience and continuing professional education components and that she had successfully completed all the components of the program on 12 September 2014.

13. On review, the applicant provided copies of the Certificate of Completion issued by the College of Law on 12 September 2014 and a letter addressed to the applicant congratulating her on successfully completing the professional program towards the Graduate Diploma of Legal Practice.

14. In her submission to the Tribunal the applicant indicated that she applied for the visa as her student visa was due to expire on 31 August 2014 and that she was in the process of finishing her work experience. She stated that she completed two examinations in June 2014 and completed the work experience component on 10 September 2014.  She was of the understanding that the study requirement had to be met when the visa application was being processed. The applicant provided another letter from the College of Law dated 8 October 2015 which provided further details about the applicant’s study. It noted that the coursework component of the course completed on 6 December 2013 but that the applicant could not complete the coursework in that period and that her final examination was completed on 24 July 2014. The letter again stated that the applicant satisfied all the requirements of the program on 12 September 2014.

15. Prior to the hearing the applicant provided a written submission and supporting documents which relevantly included copies of correspondence between her and the college of law regarding the scheduling of her exams to July 2014 which is when the applicant submits she completed the course. She stated that the College did not keep records of examination dates. The applicant stated that completed the work experience and continuing professional education components and submitted the relevant documents to the College on or about August 2014 so that her documents could be processed and she could be awarded the qualification. She stated that there was a delay due work experience documents not having been signed properly, but she was nevertheless able to resubmit the paperwork on or about August 2014. The applicant submitted that the College did not process her paperwork until September and that is why the completion letter states that she completed the course on 12 September 2014, although she had actually completed the course requirements prior to that date. She submitted that the College’s failure to keep records of examination dates resulted in her not being able to receive an actual course completion date. She stated that in the absence of a course completion date, she relied on the Confirmation of Enrolment, a copy of which was provided, which indicates that the end date for the course as 25 July 2014.

16. At the hearing the Tribunal discussed with the applicant the requirement in cl.485.221 and the evidence before it which suggests that she completed the course on 12 September 2014 as indicated by the College. The applicant reiterated the above submissions at paragraph 15. The Tribunal granted the applicant until 21 March 2017 to provide any further information she could obtain from her education provider, however to date no further information has been provided.

17. The Tribunal has considered all of the evidence before it. The Tribunal acknowledges that the CoE for the Graduate Diploma notes the end date for the course as 25 July 2014 and that the applicant sat her final examinations in July 2014, with the final exam being completed on 25 July 2014 according to the College’s letter dated 8 October 2015. The Tribunal also acknowledges the applicant’s submissions that she completed the required work experience and continuing professional education components on or about August 2016. However, as explained to the applicant at the hearing, the Tribunal considers that it is the day on which her education provider has indicated that she met the requirements for successful completion of the course that is the relevant day and not the day she sat her final examination or submitted documents to the College about the other components of the course.

18. As indicated above, ‘completed’ in relation to a degree, diploma or trade qualification is defined to mean ‘having met the academic requirements for its award’. This definition was considered in Sapkota v MIAC, 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.[1]

    [1] Sapkota v MIAC [2012] FCA 981 (Cowdroy J, 7 September 2012) at [26].

19. In light of the above, the Tribunal considers that the day on which the applicant completed the degree, namely the Graduate Diploma of Legal Practice, was 12 September 2014, which was after the visa application was lodged and was not in the 6 months immediately before the application was made.

20. Given the above, 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.

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.

    R. Skaros
    Member