1508670 (Migration)

[2015] AATA 3774

1508670 (Migration) [2015] AATA 3774 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jingsi Wang

CASE NUMBER:  1508670

DIBP REFERENCE(S):  BCC2009/330071

MEMBER:Mary Cameron

DATE:24 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

·cl.886.211 of Schedule 2 to the Regulations

Statement made on 24 November 2015 at 12:21pm

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 9 June 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 September 2009. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 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.886.211 of Schedule 2 to the Regulations because the delegate found that the applicant did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made.

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

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant meet the study requirements?

7. Clause 886.211 requires that at the time of application the applicant meets one of several alternative sub criteria. These depend on which of the alternative requirements in item 1136 of Schedule 1 to the Regulations the applicant satisfied in order to make a valid visa application. In this case, as the applicant met item 1136(4)(a)(ii), the only relevant alternative is cl.886.211(2) which requires that the applicant satisfied the Australian study requirement in r.1.15F in the 6 months immediately preceding the visa application date; and that each degree, diploma or trade qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation.

   Completion of the study requirement in the relevant period

8. To meet the study requirement in r.1.15F, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study (92 weeks).

9. As evidence of the applicant’s course completion she provided a letter of completion and academic transcript for her Master of Biomedical Engineering and a letter of completion and academic transcript for her Graduate Diploma of Management (CRICOS Course Code 023777E). The Graduate Diploma of Management is registered in CRICOS as 52 weeks duration. The letter of completion for her Graduate Diploma indicates that the applicant was given exemptions for previous studies and that, out of 48 units required for the course, she received 24 transfer credits, and that she therefore completed 26 weeks of the 52 week course.

10. The delegate found that the applicant had completed her Master of Biomedical Engineering (CRICOS Course Code 053354B) at the University of Melbourne and that the course is registered in CRICOS as 52 weeks duration.

11. Based on this information the delegate concluded that the applicant completed 26 weeks of study towards her Graduate Diploma of Management and 52 weeks of study towards her Master a Biomedical Engineering, and therefore completed a total of 78 weeks of study. Because she had not completed at least 92 weeks of study the delegate found she had not completed at least 2 academic years study and did not meet the Australian study requirement in Regulation 1.15F and therefore did not satisfy cl.886.211.

12. On 28 June 2015 the applicant wrote to the Tribunal stating that there were two different Master of Biomedical Engineering courses at the University of Melbourne and the course undertaken by the applicant with CRICOS Code 053841J was registered in CRICOS as 78 weeks duration, and therefore the applicant believes that the delegate used incorrect information in refusing the visa application. Attached to the letter is a copy of an email from the University of Melbourne dated 15 June 2015 stating that the applicant completed a Master of Biomedical Engineering course at the university with CRICOS code 053841J, and that the course was registered as 78 weeks in duration and required completion of 9 subjects and was worth 112.5 credit points. The email states that as a result of an administrative error at the time of the applicant’s admission to the course the University incorrectly issued her a COE for CRICOS code 053354B.

13. On 20 November 2015 as a result of an enquiry made by the Tribunal, the University of Melbourne confirmed by email correspondence (Tribunal file, f.25) that the CRICOS Code 053841J is the correct CRICOS code for the Master of Biomedical Engineering course, and that this code is now suspended so it cannot be found on the CRICOS website. The course duration for 053841J was 78 weeks.

14. On the basis of documents provided the Tribunal is satisfied the applicant completed a Master of Biomedical Engineering at the University of Melbourne and satisfied the requirements of that course on 31 December 2008 (Departmental file f.43). On the basis of the information provided to the Tribunal by the University of Melbourne the Tribunal is satisfied this is a registered course, of 78 weeks’ duration, and was conducted in English.

15. The evidence before the Tribunal as set out above is that the applicant completed a Graduate Diploma of Management in August 2009 (CRICOS Course Code 023777E) at Central Queensland University, for which she was awarded transfer credits with the result that she completed 26 weeks of that 52 week course.

16. The Tribunal finds that the applicant completed a Master Degree in Biomedical Engineering requiring 78 weeks study, and a Graduate Diploma of Management requiring 26 weeks study, therefore completing 104 weeks of study in courses which were registered courses in a period of 2 academic years while holding a student visa. As the visa application was lodged on 7 September 2009 and she completed her studies on 31 August 2009, the Tribunal is satisfied that the applicant satisfied the Australian study requirement in r.1.15F in the 6 months immediately preceding the visa application date.

17. The Tribunal is satisfied that the applicant has completed  registered courses and meets r.1.15F(1)(a). The Tribunal is satisfied she completed them over 28 months, that is, in a total of at least 16 months and therefore she meets r.1.15F(1)(b). Following the authority in Riaz, as the courses are registered for a total of 130 weeks, the applicant meets r.1.15F(1)(c). The courses were conducted in English so r.1.15F(1)(d) is met.  The applicant’s movement records confirm she held Subclass 573 student visa. She therefore meets r.1.15F(1)(e). The applicant therefore meets the Australian study requirement as defined in r.1.15F(1).

18. On the basis of the above, the applicant satisfied the study requirement on 31 August 2009, in the 6 months immediately before the visa application date on 7 September 2009, and therefore meets cl.886.211(2)(a).

    Whether the qualification(s) is closely related to the skilled occupation

19. In addition, each qualification used to satisfy the study requirement must be closely related to the applicant’s nominated skilled occupation: cl.886.211(2)(b). The applicant in this case has nominated the occupation of Laboratory Manager which is a skilled occupation specified in IMMI 12/068. ASCO indicates that a Laboratory Manager undertakes tasks including the supervision of laboratory technical staff; the care and handling of hazardous substances; work with production managers to ensue efficiency and quality of operations; design and supervision of validation studies and programs; effects procedures; supervises and manages manufacture, and other duties.

20. The Tribunal has considered the academic transcripts provided by the applicant and finds that the bulk of the subjects undertaken relate to aspects of biomedicine and engineering in a laboratory environment. The Tribunal is satisfied that the qualification of Master of Biomedical Engineering is closely related to the nominated occupation. The Tribunal has considered the Master qualification completed by the applicant and it is satisfied the skill set underpinning the qualification is closely related to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained. The Tribunal is satisfied the applicant’s qualifications are closely related to his nominated skilled occupation.

21. As the applicant’s qualification is closely related to the nominated skilled occupation the applicant meets cl.886.211(2)(b). As the applicant has satisfied the requirements of cl.886.211(2), cl.886.211 is met.

22. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

23. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

    ·cl.886.211 of Schedule 2 to the Regulations

    Mary Cameron
    Member