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

1. 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).

2. 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).

3. 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.

4. The applicant applied to the Tribunal on 14 November 2017 seeking review of the delegate’s decision.

5. The applicant was represented in relation to the review by her registered migration agent.

6. 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.

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

   ISSUES

8. 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.

9. 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 by an Australian educational institution as a result of a course or courses that:

   (a)  are registered courses; and

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

   (c)   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.

10. ‘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)). 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.

11. Regulation 1.15F(2) provides:

    (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.

12. 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

13. 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

14. 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.

15. 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 2^nd 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 (9^th January 2017).

    We received the assessments as due. We marked and finalised her academic file on 17^th January 2017. Hence, please note that her completion day was indeed 17^th January 2017.

    Issue 1 - Does the applicant meet the Australian study requirement?

16. 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.

17. 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.

18. 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.

19. Based on records from the Department, the Tribunal is satisfied that the applicant held the following visas between 3 March 2015 and 17 January 2017:

    Subclass 572

    Vocational Education and Training Sector visa    19 January 2015 to 10 March 2017

20. The Tribunal is therefore satisfied that the applicant undertook the Diploma of Early Childhood Education and Care while in Australia as the holder of a visa authorising her to study. The Tribunal therefore finds that r.1.15F(1)(e) is met.

21. As paragraphs (a) to (e) of r.1.15F are met, the Tribunal finds that the applicant meets the Australian study requirement.

    Issue 2 - Was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application?

22. The Tribunal then considered whether the Australian study requirement was met ‘in the period of 6 months immediately before the day the application was made’ as required by cl.485.221.

23. As the applicant made the Subclass 485 visa application on 18 July 2017, the Tribunal finds that she had to have completed her course between 18 January 2017 and 17 July 2017[1], and that ‘completed’ means that she had met the academic requirements for its award (r.1.15F(2)).

    [1] Pursuant to section 2G of the Acts Interpretation Act 1901, the period of six months immediately before 18 July 2017 is 18 January 2017 to 17 July 2017.

24. On 3 May 2018, the Tribunal received submissions from the applicant’s representative submitting that the applicant satisfied her course requirements as follows:

    17 January 2017 – date final assessment[s] were marked

    19 January 2017 – finalization of Student Achievement Summary

    20 January 2017 – date of approval for graduation (the ‘completion date’)

    14 February 2017 – date of award and issue of diploma

25. Various documents were provided in support of these dates. Reference was made in the submissions to the case of Chan (Migration) [2017] AATA 707, which examined conflicting dates for completion of course requirements as follows:

26. In conclusion it was submitted that the applicant completed her diploma when she was deemed to have met all of the academic requirements for its award, being when she was approved to graduate on 20 January 2017.

27. 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 portions 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 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.

28. Based on the documents provided from the education institution, the Tribunal is satisfied and finds that 19 January 2017 was the date upon which it decided that the academic requirements for the Diploma of Early Childhood Education and Care had been met by the applicant. 19 January 2017 is ‘in the period of 6 months immediately before the day the application was made’ on 17 July 2017. Therefore, the applicant meets cl.485.221 of Schedule 2 to the Regulations.

29. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    decision

30. 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 Trotter
    Member