Zozime (Migration) - [2018] AATA 1493

Zozime (Migration) [2018] AATA 1493 (9 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sophia Christelle Zozime
CASE NUMBER:  1728211
DIBP REFERENCE(S):  BCC2017/2551230
MEMBER:Susan Trotter
DATE:9 May 2018
PLACE OF DECISION:  Brisbane
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.485.221 of Schedule 2 to the Regulations.

Statement made on 09 May 2018 at 6:10pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ‘Australian study requirement’ – Diploma of Early Childhood Education and Care – Registered course –Completed the course 6 months prior to the day of the application – Tribunal remits the application
LEGISLATION
Education Services for Overseas Students Act 2000
Acts Interpretation Act 1901 s 2G
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.15F, 2.26AC Schedule 2 cls 485.111, 485.221
CASES
Chan (Migration) [2017] AATA 707
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC [2008] FMCA 409
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 and Border Protection (the Minister) on 25 October 2017 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 18 July 2017. Visa Class VC contains Subclass 485. 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the ‘Australian study requirement’ in the six months immediately before the day the application was made.
The applicant applied to the Tribunal on 14 November 2017 seeking review of the delegate’s decision.
The applicant was represented in relation to the review by her registered migration agent.
In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES
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 that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months before the day the visa application was made.
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 one or more degrees, diplomas or trade qualifications for award…

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: [2018] AATA 1493
Decision Date: 9 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute concerning a Skilled (Provisional) (Class VC) visa, Subclass 485, applied for by Sophia Zozime. The core of the disagreement revolved around whether Ms. Zozime met the "Australian study requirement" for the visa.

The Tribunal was tasked with determining two primary issues: first, whether the applicant satisfied the Australian study requirement, and second, if so, whether this requirement was met within the six months immediately preceding the visa application date. The applicant had provided evidence of completing a Diploma of Early Childhood Education and Care at the Queensland Academy of Technology, with initial documentation suggesting completion by 2 December 2016. However, further correspondence from the educational institution clarified that the applicant's final assessments were marked and her academic file finalised on 17 January 2017, after an extension for outstanding assignments.

The Tribunal found that the Diploma of Early Childhood Education and Care was a registered course, satisfying the initial criterion. It was also satisfied that the applicant's study, which commenced on 3 March 2015, was completed on 17 January 2017, thus meeting the duration requirement of at least 16 calendar months. Furthermore, the Tribunal confirmed that the course met the CRICOS registration requirements regarding duration and instruction in English. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criterion specified in cl.485.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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.485.221 of Schedule 2 to the Regulations.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

It follows that the issues to be determined by the Tribunal are:(a) Does the applicant meet the Australian study requirement? And, if so,(b) Was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application?CONSIDERATION The applicant listed the following Australian study in her visa application:Diploma in Early Childhood Education and Care Queensland Academy of Technology 03/03/15 to 23/02/17 The applicant provided to the Department of Immigration and Border Protection (the Department) in support of the application, amongst other things, a record of results issued 1 February 2017, including for subjects up until 2 December 2016, and a certificate issued 1 February 2017 certifying the applicant had fulfilled the requirements for the Diploma of Early Childhood Education and Care at the Queensland Academy of Technology. Following various emails between the applicant, the education institution and the Department, the Queensland Academy of Technology emailed the Department on 29 September 2017 as follows (unedited):We refer to the confirmation letter for Sophia Zozoime, we stated that the Diploma of Early Childhood Education and Care Program ended 2nd December 2016, as per CofE No6D474C84.We regret to advise that upon reviewing her student file we had approved an extension of time for her to submit 2 outstanding assignments on the first week of our school year (9th January 2017).We received the assessments as due. We marked and finalised her academic file on 17th January 2017. Hence, please note that her completion day was indeed 17th January 2017.Issue 1 - Does the applicant meet the Australian study requirement? Having regard to all evidence and material before it, including Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and the Provider Registration and International Students Management System (PRISMS) records, the Tribunal finds that the Diploma of Early Childhood Education and Care is a registered course, being a course of education provided by an institution that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met. The documentary evidence before the Tribunal shows that the applicant completed the Diploma of Early Childhood Education and Care between 3 March 2015 and 2 December 2016. Based upon documents provided by the applicant from the Queensland Academy of Technology, the Tribunal is satisfied and finds that the applicant continued to study until 17 January 2017 when she completed her final assessments. The applicant’s study was therefore as a result of a course that was completed in a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met. The CRICOS registration indicates that the duration of the Diploma of Early Childhood Education and Care is 92 weeks (that is, at least two academic years) and, further, that all instruction is in English. Based on this evidence, the Tribunal is satisfied that the requirements of rr.1.15F(1)(c) and r.1.15F(1)(d) are met.