Estrella Cueva (Migration) [2022] AATA 878 (8 April 2022)

Last Updated: 28 April 2022

Estrella Cueva (Migration) [2022] AATA 878 (8 April 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Jorge Esteban Estrella Cueva

REPRESENTATIVE: Ms Ines Flores (MARN: 0100705)

CASE NUMBER: 2113920

HOME AFFAIRS REFERENCE(S): BCC2019/4123607

MEMBER: R. Skaros

DATE: 8 April 2022

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 of Schedule 2 to the Regulations.

Statement made on 08 April 2022 at 1:38pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant ‘completed’ the course within the meaning of r.1.15F within that period – applicant completed the course within the 6 months immediately preceding the date of application – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.231


CASES
Ali v MICMSMA [2021] FCA 1311
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 21 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 August 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 (Cth) (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 was not satisfied that the evidence demonstrated the applicant’s study satisfied the Australian Study requirement in the period of 6 months immediately before the date of the visa application as required by cl 485.231 of Schedule 2 to the Regulations.

4. The applicant was represented in relation to the review.

5. The Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the material before it.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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. In this case, the applicant holds a Bachelor of Engineering (Civil and Environmental Engineering) from the University of Queensland which is a qualification specified in that instrument. 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.

10. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland which is registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offers courses at the degree level or above, and which is therefore an educational institution specified in that instrument. Accordingly, cl 485.231(2) met.

Does the applicant meet the Australian study requirement?

11. 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.

12. Under reg 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.

13. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: LIN 19/085.

14. In this case, the applicant provided the Department with a letter of completion from the University of Queensland (undated) which stated that he completed the academic requirements for the award of the degree on 26 September 2019. As this was after the lodgement of the visa application the delegate was not satisfied that the applicant completed the course in the required period and concluded he did not meet cl.483.231.

15. On review the applicant’s representative provided a submission asserting that the applicant received a passing grade for his last subject on 29 July 2019, and this is the date he should be taken to have completed his course. Evidence was submitted to support this contention, consisting of the applicant’s academic transcript, and emails between the applicant and the university regarding his final three subjects.

16. Consistently with the letter of completion, the applicant’s academic transcript states that he completed the program requirements for the course on 30 September 2019. Notably, the transcript also identifies the three subjects he successfully completed in his final semester: Project (CIVL 4560); Fire Safety Engineering (FIRE 3700); and Health and Fitness (NUTR 1023). The emails from the University to the applicant confirm the following: he received his passing results from CIVL 4500 and NUTR 1023 on 3 July 2019 but was required to undertake a supplementary exam for FIRE 3700; he undertook that exam on 18 July 2019; and received his results (passing) on 29 July 2019.

17. In Sapkota v MIAC [2012] FCA 981, the Federal Court, determined that the relevant date for determining course completion is the point the education institution decides the academic requirements have been met (including for a final subject) and finalises the results, after which time the applicant can obtain those results. In Ali v MICMSMA [2021] FCA 1311, the Federal Court found that the correct construction of ‘completed’ in r.1.15F required the decision-maker to consider when the student submitted all relevant items for assessment to the education provider and the education provider assessed these items and determined for itself whether the student had in fact achieved the academic result.

18. In this case, the applicant contended that he completed the course on 29 July 2019, the day he was advised of the results of his final subject. It is possible this is the date the education provider decided he met the academic requirements and finalised the results, though it is also possible this occurred prior to that date. In any event, the evidence indicates that the applicant was found to have satisfied the requirements for his last subject sometime between the conclusion of his final exam on 18 July 2019 and being advised his result was available to him on 29 July 2019. Consistently with the principles in Sapkota and Ali, the Tribunal finds that the applicant ‘completed’ the course within the meaning of r.1.15F within that period. He had completed the course by 29 July 2019. The Tribunal is satisfied that he completed the course within the 6 months immediately preceding the date of application.

19. Further evidence before the Tribunal confirms that the course was registered on CRICOS as requiring 208 academic weeks of study, the applicant completed the course between 28 July 2014 and July 2019, a period of almost 60 calendar months and the course was conducted in English. The course was also conducted in Australia and the applicant held subclass 573 and 500 visas, permitting him to undertake the relevant study, during this period.

20. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

• the applicant’s Bachelor of Engineering, a Degree within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;
• the course was a CRICOS registered course;
• the course was completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);
• all instruction was in English; and
• the course was conducted in Australia while the applicant held a visa authorising study in Australia.

21. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, cl 485.231(3) is met.

22. 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

23. 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.

R. Skaros
Senior Member