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

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).
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.
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.
The applicant appeared before the Tribunal on 7 March 2017 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 459
Decision Date: 27 March 2017

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream, brought before the Administrative Appeals Tribunal. The applicant sought to satisfy the primary criteria for this visa, specifically the requirement to have fulfilled the 'Australian study requirement' in the six months immediately preceding the date of the visa application.

The central legal issue before the Tribunal was whether the applicant had 'completed' her Graduate Diploma of Legal Practice within the specified six-month period prior to her visa application. The regulations define 'completed' in relation to a qualification as having met the academic requirements for its award. The applicant had provided evidence of completing a Bachelor of Laws/Bachelor of Science in August 2012 and indicated her Graduate Diploma of Legal Practice was completed in July 2014. However, the Department sought clarification on the precise date all requirements for the Graduate Diploma were met, as initial documentation suggested the coursework concluded in December 2013, with further components, including work experience, being completed later.

The Tribunal considered the definition of 'completed' and the evidence provided by the applicant. While the coursework for the Graduate Diploma of Legal Practice was finished in December 2013, the applicant did not satisfy all the requirements for the award of the qualification until 12 September 2014, when she completed the necessary work experience and continuing professional education components. This date was significantly after the six-month period preceding her visa application. Consequently, the Tribunal found that the applicant did not satisfy the Australian study requirement as stipulated by clause 485.221 of Schedule 2 to the Regulations.

As the applicant failed to meet this essential criterion for the Subclass 485 visa, and no other relevant visa subclass was being considered, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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. ‘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)). 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. 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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