1510074 (Migration)

[2016] AATA 3051

1510074 (Migration) [2016] AATA 3051 (13 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhihang Chen

CASE NUMBER:  1510074

DIBP REFERENCE(S):  BCC2015/824120

MEMBER:Glen Cranwell

DATE:13 January 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 13 January 2016 at 2:13pm

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 14 July 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 13 March 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 on 13 January 2016 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 includes cl.485.231 of the Regulations.  This requires that the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing (IMMI 13/013) and that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (IMMI 13/031) (cl.485.231(1) and (2)). In addition, in respect of the qualification or qualifications, the applicant must have satisfied the ‘Australian study requirement’ in the period of 6 months ending immediately before the day the visa application was made: cl.485.231(3).  The issue in this case is whether the applicant meets cl.485.231(1) and cl.485.231(3). 

7. The applicant claimed on the visa application form to have completed a Master of Business Advanced on 4 July 2014, and a Graduate Diploma of Management on 10 November 2014.

8. At the hearing, the applicant conceded that he did not meet the requirements for the Post-Study Work stream.  He asked to be assessed under the Graduate Work Stream.  However, item 1229(3)(j) of Schedule 1 permits applicants for a Subclass 485 visa to nominate only one stream to which the application relates.

   Does the applicant hold a qualification or qualifications of a kind specified by the Minister in an instrument in writing?

9. The Tribunal finds that the applicant’s Graduate Diploma of Management is not a qualification of a kind specified by the Minister in the relevant instrument in writing, IMMI 13/013, which nominates the following qualifications for the purposes of cl.485.231(1):  Bachelor Degree; Bachelor (Honours) Degree; Masters by Coursework Degree; Masters by Research Degree; Masters (Extended) Degree and/or; Doctoral Degree.  A Graduate Diploma is not one of the specified qualifications.  Therefore, it is unnecessary for the Tribunal to consider whether this qualification meets the Australian study requirement in cl.485.231(3), which refers back to the qualification/s relied upon in cl.485.231(1).

10. The Tribunal finds that the applicant’s Master of Business Advanced degree is a qualification of a kind specified by the Minister in an instrument in writing (IMMI 13/013).  The Tribunal must, therefore, consider whether this qualification satisfies cl.485.231(3).

    Did the applicant meet the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made?

11. 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:

    (a)  that are registered courses; and

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

    (c)  that 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.

12. ‘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).

13. The visa application was made on 13 March 2015.  The Tribunal finds that the applicant completed his Master of Business Advanced on 4 July 2014.  Therefore, it was not completed (as defined: see r.2.26AC(6)) in the 6 months immediately before the application was made.  Given this finding, it is not necessary for the Tribunal to consider the other elements of the definition of 'Australian study requirement' in r.1.15F(1).

14. The Tribunal is not satisfied the applicant’s study for this qualification satisfied the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made.  Accordingly, the applicant does not meet cl.485.231(3) and, therefore, cl.485.231 as a whole.

15. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review must be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Glen Cranwell
    Member