TWAYANA (Migration)

[2019] AATA 5083

TWAYANA (Migration) [2019] AATA 5083 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SUSHILA TWAYANA
Mr ANIL SHAKYA

CASE NUMBER:  1813760

HOME AFFAIRS REFERENCE(S):           BCC2018/914672

MEMBER:Kira Raif

DATE:9 August 2019

PLACE OF DECISION:  Sydney

DECISION: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

Statement made on 09 August 2019 at 9:34am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – studies completed in an academic year – study duration of at least 92 weeks – two courses completed concurrently – recognition of prior learning – subjects credited towards both courses – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.231; rr 1.03, 1.15

CASES

Bhatt v MIAC [2012] FCA 918
Bhatt v MIAC. [2012] FMCA 317
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 24 April 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) is a national of Nepal born in September 1990. She applied for the visa on 26 February 2018. The application includes her partner. The delegate refused to grant the visas because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant completed at least 2 academic years of study and that she met the Australian study requirement. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. 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.

5. 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.

6. ‘Australian study requirement’ has the meaning given by r.1.15F of the Regulations: r.1.03. Regulation 1.15F provides that:

   (1)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:

   (a)that are registered courses; and

   (b)that were completed in a total of at least 16 calendar months; and

   (c)that were completed as a result of a total of at least 2 academic years study; and

   (d)for which all instruction was conducted in English; and

   (e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

   NoteAcademic year is defined in regulation 1.03.

   (2)In this regulation:

   completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
   Note   The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

7. The term ‘academic year’ is defined in r.1.03 to mean a period that is specified as an academic year in an instrument in writing. The instrument in effect at the time of this decision is LIN 19/085. It commenced on 3 April 2019, and repealed the whole of IMMI 09/040. In the absence of any transitional or savings provisions with respect to IMMI 09/040, the Tribunal finds that LIN 19/085 applies to the present application.

8. The instrument LIN 19/085 defines an academic year as at least a total of 46 weeks, being the duration of a course or courses registered under the ESOS Act. The Court’s reasoning in Riaz v MIBP [2013] FCCA 2244 suggests that this will be the case even if the student is given recognition for prior learning and prior study was not undertaken in Australia. 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.

   Does the applicant meet the Australian study requirement?

9. The applicant stated on the application form that she completed a Graduate Certificate in Business at the University of Wollongong, a Master of Business Administration (MBA) and a Master of Professional Accounting (MPA) between August 2016 and November 2017 at Holmes Institute. The applicant included with his application a letter of completion and an academic transcript for these qualifications. The delegate found that the MBA and MPA were each registered on CRICOS for 78 weeks and as the two qualifications overlapped, they could not be counted twice. The delegate found that the applicant did not complete the courses as a result of at least 92 weeks of study and that she did not meet the 2 academic years requirement in r. 1.15(1)(c).

10. The Tribunal is mindful that the 2 year study requirement can be met by completing more than one qualification. There is nothing in the legislation stating that the courses cannot be completed concurrently or must be done consecutively. In this case, the applicant completed two distinct qualifications, a Master of Professional Accounting and a Master of Business Administration. The two qualifications were separately registered on CRICOS as each being of 78 weeks duration.

11. The Tribunal has had regard to the document provided by Holmes Institute in another matter, the circumstances of which were similar to the present case. In that case (Tribunal reference 1730108), the following advice was provided by Holmes College in writing:

    Students do not always complete their two degrees consecutively as per the prescribed study plan and may undertake an irregular enrolment undertaking subjects from both degrees resulting in the same completion date. However, the student will have met the requirement for both awards having completed 16 subjects and studied in excess of the 92 CRICOS weeks required

12. As the two qualifications were registered separately on CRICOS, and can be completed independently, the Tribunal is satisfied that the two qualifications can each contribute towards the 2 year study requirement.

13. The Tribunal finds that the two courses were registered courses. The fact that the applicant was able to complete part of the two courses concurrently indicates that at least some of the subjects were credited towards both courses and her academic transcript shows that the applicant completed mostly the same subjects to obtain the two qualifications and was required to complete two additional subjects to obtain the second qualification. However, as long as the two courses are registered as being a total of at least 92 weeks duration, and were completed or met the academic requirements for award of the degrees, recognition of prior learning or credits granted are a matter for the education provider in deciding what is required for a person to complete a course for conferral of the qualification/s (Riaz v MIBP [2013] FCCA 224). Thus, the Tribunal finds that the two courses were completed as a result of at least 92 weeks and 2 academic years of study.

14. The letter of completion indicates that the two qualifications were completed between 11 July 2016 and 6 November 2017. However, the applicant stated on the application form that she commenced the course in August 2016. She also provided the two CoEs for the MBA and MPA and both show that the courses commenced in August 2016 and August 2017 respectively. If the two courses commenced in August 2016 and were completed in November 2017, they were not completed as a result of at least 16 months of study.

15. In her submission to the Tribunal of 6 August 2019 the applicant states that she completed a Graduate Certificate of Business between August 2015 and November 2015 and two trimesters towards the Master of Professional Accounting between February 2016 and August 2016 at the University of Wollongong (UoW). She then moved to Holmes Institute where she completed the MBA and MPA between August 2016 and November 2017. She was given exemptions for two subjects but completed more than 92 weeks of study. The applicant provided with her submission to the Tribunal a copy of the academic transcript issued by the University of Wollongong, showing that in Trimester 3 of 2015 the applicant was enrolled in the Graduate Certificate in Business and in Trimesters 1 and 2 of 2016 she was enrolled in the Master of Professional Accounting.

16. The Tribunal is of the view that a Graduate Certificate is not a degree, postgraduate diploma or diploma and cannot be used towards the Australian study requirement (see In Bhatt v MIAC. [2012] FMCA 317, upheld on appeal in Bhatt v MIAC [2012] FCA 918). However, the applicant also completed two trimesters of Master of Professional Accounting at the University of Wollongong in 2016. The academic transcript issued by Holmes Institute indicates that the applicant was granted exemptions for her study at UoW. That is, the study at UoW contributed to the applicant’s completion of the courses at Holmes Institute. The Tribunal is satisfied that the study at the University of Wollongong should be counted towards the completion of the qualification and, when added to the courses at Holmes, the overall period of study exceeded 16 months. The Tribunal is satisfied that the courses completed by the applicant were completed in a total of at least 16 calendar months.

17. The letters of completion confirm that the programs were delivered in English. The Tribunal is satisfied that the applicant undertook study while in Australia as the holder of a visa authorising her to study. The Tribunal finds that the applicant met the Australian study requirement in r. 1.15F.

18. The applicant completed the MBA on 6 November 2017. She made the application on 26 February 2018. 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. The Tribunal finds that the applicant meets cl. 485.231(3).

    Conclusion

19. On the basis of the above findings, the Tribunal finds that the 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

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(3) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member