1506514 (Migration)

[2015] AATA 3498

1506514 (Migration) [2015] AATA 3498 (22 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phung Minh Hien Tran

CASE NUMBER:  1506514

DIBP REFERENCE(S):  BCC2015/645453

MEMBER:Bruce MacCarthy

DATE:22 October 2015

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

Statement made on 22 October 2015 at 2:32pm

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 on 6 May 2015 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 27 February 2015. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal, in a telephone conference, on 21 October 2015 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant 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. This clause reads as follows:

   485.231

   (1)the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

   (2)each qualification was conferred or awarded by an educational institutions specified by the Minister in an instrument in writing for this subclause

   (3)and

   The issue in the present case is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

7. The applicant provided evidence, dated 27 March 2015, that he holds a Bachelor of Engineering degree from the University of Queensland.  That document states that he completed his studies for that qualification on 26 March 2015 and, as at the date of the University’s letter, it was estimated that the degree would be conferred in July 2015.  He has since provided evidence to the Tribunal that the degree was formally granted on 24 July 2015.  On the basis of this evidence, the Tribunal is satisfied that the applicant holds that degree.  Evidence in the delegate’s decision record satisfies the Tribunal that the applicant’s qualification is one of a kind specified by the Minister in the relevant instrument (IMMI 13/013). 

8. In his decision record, the delegate said that, as the applicant did not hold the degree when the application was lodged, he did not satisfy cl.485.231(1).  However, there is no requirement in that subclause that the relevant qualification be formally conferred at the time the application was lodged.  As the Tribunal is satisfied that the applicant holds the qualification, it finds that he satisfies the requirements of cl.485.231(1).

   Was the qualification awarded by a specified educational institution?

9. As previously noted, the applicant’s degree qualification was awarded by the University of Queensland.  The evidence in the delegate’s decision indicates that that University is registered on the Commonwealth Register of Institutions and Courses for Overseas Students.  In instrument IMMI 13/031, the Minister specified that Australian universities and non-university education providers are eligible education providers for the purposes of subclause 485.231(2) if they are registered on that Register.  The Tribunal therefore finds that the requirements of cl. 485.231(2) are satisfied. 

   Did the applicant’s study for the qualification satisfy the Australian study requirement in the period of 6 months ending immediately before the day the application was made?

10. 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; and

    ·that were completed in a total of at least 16 calendar months; and

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·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.

11. ‘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 (IMMI 09/040).

12. The Tribunal is satisfied, on the basis of information from the CRICOS website that the applicant’s Bachelor of Engineering degree course was a registered course involving more than 2 academic years of study.  It is further satisfied that all instruction for the course was conducted in English.  The letter dated 27 March 2015 mentioned above that the applicant’s degree course was completed in a total of at least 16 calendar months.  The Tribunal is satisfied, on the basis of the Department’s movement records that the applicant undertook his study while in Australia as the holder of a visa authorising him to study.

13. Given the above conclusions, the Tribunal finds that the applicant’s study for his degree satisfied the Australian study requirement.

14. The applicant provided the Department with a copy of a letter dated 27 March 2015 from the University of Queensland in which it is stated that the applicant commenced his studies for the degree on 25 February 2013 and completed his degree course on 26 March 2015.  However, he provided the Tribunal with another letter apparently written on 6 May 2015 which states that the academic requirements for the applicant’s degree were “officially completed” on 3 December 2014.

15. At the hearing, the applicant explained the contradiction between the 2 dates.  He said that he had completed all academic requirements in late 2014 but, in order to be awarded the degree he needed to undertake an internship.  He presumed that the completion date set out in the letter of 27 March 2015 referred to the fact that he had completed the internship.

16. The Tribunal sought clarification from the University concerned and received an email message on 22 October 2015.  In that message, an officer of the University effectively confirmed what the applicant had said at the hearing.  He said that the programme rules for the degree in question require students to complete 64 units of study as well as completing 60 days of engineering professional practice.  He said that the letter referring to the academic requirements being completed on 3 December 2014 referred to the date for the official result lease of the results for semester 2 of 2014 at which time the applicant had satisfied “all academic requirements.”  He said that the date 26 March 2015 was a “milestone completion date”, being the date on which the professional report relating to the applicant’s 60 days of engineering professional practice was “signed off as approved by the Faculty”

17. Having considered the University’s explanation of the conflict between the 2 dates, the Tribunal finds that the applicant satisfied all academic requirements for the course on 3 December 2014.  Given this finding and the definition of the word “completed” in r.1.15F(2) (see paragraph 11 above), the Tribunal is satisfied that the applicant’s study for his degree qualification satisfied the Australian study requirement on 3 December 2014, which is in the period of 6 months ending immediately before the day the application was made.  The Tribunal therefore finds that the requirements of cl.485.231(3) are satisfied and those of cl.485.231 as a whole are satisfied.  The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. 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

    Bruce MacCarthy
    

    Member