YIP (Migration)

[2019] AATA 2294

YIP (Migration) [2019] AATA 2294 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hoi Ying YIP

CASE NUMBER:  1820680

HOME AFFAIRS REFERENCE(S):           BCC2018/1027160

MEMBER:Katie Malyon

DATE:31 May 2019

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(3) of Schedule 2 to the Regulations

Statement made on 31 May 2019 at 4:02 pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – Post-Study Work stream – study requirements – certificate – did not state completed date –academic transcripts and letter confirming completion date – decision under review remitted

LEGISLATION

Education Services for Overseas Students Act 2000, s 9
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2 cls 483.231, 485.111, 485.231, rr 1.03, 1.15F, 2.26AC(6)

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 Home Affairs on 28 June 2018 to refuse to grant the applicant, Miss Hoi Ying Yip, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Yip applied for the visa on 4 March 2018. 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, Ms Yip is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.231 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa because Miss Yip did not satisfy cl.485.231 of Schedule 2 to the Regulations since the degree certificate provided by her in respect of her Bachelor of Pharmacy from the University of Sydney (USyd) did not state the date of completion of her degree.  Accordingly, the delegate was not satisfied with the evidence provided that Ms Yip’s degree was completed at some time in the 6 months before the application was lodged.  A copy of the delegate’s decision was provided to the Tribunal.

4. The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers pursuant to s.360(2)(a) of the Act having regard to material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Ms Yip is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations. These include that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3) of Schedule 2 of the Regulations.

6. The issue in the present case is whether Miss Yip ‘completed’ her Bachelor of Pharmacy in the 6 months immediately before making her Subclass 485 visa application on 4 March 2018 as required by cl.485.231(3) of Schedule 2 to the Regulations.

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

7. 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.

8. 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:

   (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.

9. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms: see r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. 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 s.9 of the Education Services for Overseas Students Act 2000. Regulation 1.15F(2) defines the ‘completion’ of a degree, diploma or trade qualification as follows:

   (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.

10. Accompanying her application for review to the Tribunal, Miss Yip provided a copy of her academic record.  She also provided a confirmation letter dated 17 July 2018 signed by Ms Narelle Da Costa, Curriculum and Teaching Support Advisor at USyd, which states that the course completion date was 13 December 2017.

11. The Tribunal has independently contacted USyd for confirmation of the details in Ms Da Costa’s letter in light of the lack of evidence provided to the Department of the date of completion of Miss Yip’s Bachelor of Pharmacy.  Based on written evidence provided by Mr Duncan Pickup, Curriculum and Teaching Support Advisor in the Faculty of Medicine and Health at USyd, the Tribunal is satisfied that, as stated in Ms Da Costa’s letter, Miss Yip completed her degree on 13 December 2017.

    Consideration of evidence

12. The Tribunal has considered the requirements of cl.483.231(3) of Schedule 2 of 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.

13. As noted 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]  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.   

    [1] Sapkota v MIAC [2012] FCA 981, Cowdroy J at [26]

14. Based on the letter from USyd’s Ms Da Costa dated 17 July 2017 and the email from Mr Pickup dated 21 May 2019, the Tribunal finds that Miss Yip completed the requirements to be awarded a Bachelor of Pharmacy on 13 December 2017.  This is within the 6 months immediately before the date her Subclass 485 visa application was made on 4 March 2018.

15. The Tribunal has reviewed the CRICOS Register for USyd’s Bachelor of Pharmacy, Course Code 000723J, the course which Miss Yip’s Academic Transcript from USyd as well as the letter from Ms Da Costa and the email from Mr Pickup confirm she was enrolled in, and completed. The CRICOS registration indicates that the duration of the Bachelor of Pharmacy course at USyd is 208 weeks (that is, more than 2 academic years) and, further, that all instruction is in English. Based on this evidence, the Tribunal is satisfied that Miss Yip meets the requirements of r.1.15F(1)(a), r.1.15F(1)(c) and r.1.15F(1)(d) of the Regulations.

16. Having regard to the Academic Transcript and the letter from Ms Da Costa confirming the completion date of Miss Yip’s studies, the Tribunal is satisfied that Miss Yip’s course was completed in a total of more than 16 calendar months. Accordingly, she meets r.1.15F(1)(b) of the Regulations.

17. The Department’s records confirm that Miss Yip held a Student visa valid to 15 March 2018 authorising her to study while undertaking her Bachelor of Pharmacy course at USyd. Accordingly, she meets r.1.15F(1)(e) of the Regulations.

18. Having regard to evidence referred to above, the Tribunal finds that Miss Yip satisfies the Australian study requirement in the 6 months immediately before the date she lodged her Subclass 485 the visa application. Therefore, she meets cl.485.231(3) of Schedule 2 of the Regulations. In the circumstances, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. 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.

    Katie Malyon

    
    Member