Wangmo (Migration)

[2019] AATA 3898

Wangmo (Migration) [2019] AATA 3898 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sonam Keldee Wangmo

CASE NUMBER:  1915454

HOME AFFAIRS REFERENCE(S):           BCC2019/1287896

MEMBER:Nicola Findson

DATE:2 September 2019

PLACE OF DECISION:  Perth

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 02 September 2019 at 9:27am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post-Study Work stream – Australian study requirement met in required timeframe – holds specified qualification – Bachelor of Engineering – qualification awarded by university specified in instrument – registered course – student visa holder – instruction conducted in English – course duration 2 academic years – completed in 16 months – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), Schedule 2, cl 485.231

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 28 May 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 14 March 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 met the Australian study requirement.

4. The Tribunal reviewed the decision and information contained in both the Tribunal and Departmental files and is satisfied that the applicant meets the requirements of r.485.231.  On that basis, a decision has been made on the papers.  There was no need for a hearing as the matter is being remitted. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 hold a specified qualification?

7. 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, which specifies the following qualifications:

   (a)Bachelor Degree;

   (b)Bachelor (Honours) Degree;

   (c)Masters by Coursework Degree;

   (d)Masters by Research Degree;

   (e)Masters (Extended) Degree and/or;

   (f)Doctoral Degree.

   In this case, the applicant holds a Bachelor of Engineering (Civil) from Edith Cowan University, Western Australia, which is a qualification specified in that instrument.

8. Accordingly, cl.485.231(1) is met.

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

9. 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 that specifies for the purposes of cl.485.231(2) that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offer courses at degree level and above.

10. The Tribunal has confirmed that Edith Cowan University is a CRICOS registered provider: CRICOS Code 00279B. The Tribunal finds that Edith Cowan University offers courses at degree level and above.

11. In this case, the Tribunal is satisfied that the applicant’s qualification was conferred or awarded by an educational institution specified in the relevant instrument.

12. Accordingly, cl.485.231(2) is met.

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

13. 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.

14. 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.

15. ‘Registered course’ and ‘completed’ are defined terms (see rr.1.03, 1.15F). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under the Education Services for Overseas Students Act 2000: IMMI 09/040.

16. The applicant has provided the following evidence.  In her visa application lodged on 14 March 2019, the applicant stated, amongst other things, that she had most recently completed a Bachelor of Engineering (Civil) at Edith Cowan University in the period 12 February 2016 to 1 March 2019.

17. Evidence from the CRICOS database confirms that the applicant’s course is registered.  The applicant’s movement records confirm that she held a student visa while studying and was therefore authorised to study.

18. The completion letter from Edith Cowan University first lodged with the visa application indicated that the applicant commenced the course in February 2016 and completed it on 21 March 2019, after the visa application was made.  The letter also confirmed that all instruction was conducted in English.

19. The Tribunal has received additional information from the applicant, including, but not limited to a statement of the applicant and email correspondence from Edith Cowan University. This additional information clarifies that during her final semester of studies (July to November 2018) the applicant acquired an internship with a construction company.  As a result, the applicant reduced her study workload by removing one unit, a practicum, which she subsequently completed over the summer period (November 2018 to February 2019).  The practicum report was submitted on 28 February 2019 and the applicant received confirmation from the university on 12 March 2019, that her results had been finalised and that she had passed the final unit of her course.

20. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC [2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’.  The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature.  Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university.  The term ‘completed’ was also considered in Sapkota v MIAC [2012] FCA 981 where Cowdroy J held that 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 education institution’.  The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.

21. Having regard to all of the evidence, including the additional information not before the delegate, the Tribunal is satisfied that the applicant achieved the necessary results or credits to enable her to be awarded a Bachelor of Engineering (Civil) at the latest by 12 March 2019, after she had passed her final practicum unit.  The Tribunal is therefore satisfied and finds that the applicant completed the Bachelor of Engineering (Civil), as that term is defined for the purposes of cl.485.231(3) on 12 March 2019.  It follows that the Tribunal is satisfied that the Bachelor of Engineering (Civil) was completed within the 6 months immediately before the visa application was made. 

22. Having regard to the CRICOS website the Tribunal is also satisfied that the course was registered, of 208 weeks duration (that is, at least 2 academic years) and conducted in English. It was completed in the period February 2016 to March 2019, that is, in a total of at least 16 calendar months.

23. On this basis, the Tribunal is satisfied the applicant met the Australian study requirement in the 6 months immediately before the day the visa application was made.  Therefore, the applicant meets cl.485.231.

24. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

25. Accordingly, cl.485.231(3) is met.

26. 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

27. 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.

    Nicola Findson
    Member