1517173 (Migration)

[2016] AATA 4571

1517173 (Migration) [2016] AATA 4571 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yuandong Kuang

CASE NUMBER:  1517173

DIBP REFERENCE(S):  BCC2015/2509102

MEMBER:Antonio Dronjic

DATE:21 October 2016

PLACE OF DECISION:  Melbourne

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(3) of Schedule 2 to the Regulations.

Statement made on 21 October 2016 at 11:05am

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 26 November 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 28 August 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(3) of Schedule 2 to the Regulations because the applicant has failed to provide evidence that she met the Australian study requirement as requested by r.1.15F (1) (c). The delegate found that the CRICOS registered duration of Masters of Professional Accounting course completed by the applicant was 78 weeks.

4. The applicant applied to the tribunal on 13 December 2015 for review of the delegate’s decision. With the application, the applicant submitted the following documents:

   ·Applicant’s Statutory Declaration dated 12 December 2015 stating that La Trobe University issued her with the incorrect Certificate of Enrolment (COE) in 2014 when she applied for subclass 485 visa. She provided explanation that on 23 January 2014 she transferred from Masters of Professional Accounting course (course code LMPA) to Masters of Professional Accounting course (course code LMPAC) as the latter course was catered for student of non-accounting background. The LMPAC course was a CRICOS registered course of 104 weeks;

   ·COE issued by La Trobe University related to Masters of Professional Accounting course (079547A) confirming that the applicant was initially issued with the wrong COE and that she successfully transferred to the two years Masters of Professional Accounting course (LMPAC);

   ·Letter from  La Trobe University dated 21 August 2015 confirming that the applicant transferred from Masters of Professional Accounting course (course code LMPA) to Masters of Professional Accounting course (course code LMPAC);

   ·CRICOS extracts as evidence that the registered duration of Masters of Professional Accounting course (079547A) that the applicant completed was 104 weeks; and

   ·Extract from La Trobe University handbook relevant to LMPAC course.

5. On 20 September 2016, the tribunal wrote to the applicant advising her that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend the hearing.

6. The applicant appeared before the tribunal on 20 October 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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(3) of Schedule 2 to the Regulations. This require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made.

   Does the applicant meet the Australian study requirement?

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 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.

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. The applicant is relying on her completion of Masters of Professional Accounting course (CRICOS code 079547A) at La Trobe University from 4 March 2013 to 10 July 1015.

12. Based on the evidence before it, and in particular CRICOS extracts evidencing that the registered duration of Masters of Professional Accounting course (079547A) the applicant completed was 104 weeks, I am satisfied that she meets requirements of r.1.15F(1)(a) and (c).

13. Based on the completion latter and applicant’s statement of results I am satisfied that the course was completed in a total of more than 16 calendar months. Accordingly the applicant meets 1.15F(1)(b).

14. I am satisfied that all instruction of Masters of Professional Accounting course was conducted in English. The applicant therefore satisfies 1.15F(1)(d).

15. Departmental records confirm that the applicant was the holder of a visa authorising the applicant to study during this period.  Accordingly the applicant meets 1.15F(1)(e).

16. Based on the completion letter from La Trobe University I find that the applicant completed the requirements for the award of Masters of Professional Accounting on 10 July 2015 and therefore, I find that the applicant satisfied the ‘Australian study requirement’ set out in regulation 1.15F on this date, which is within six months immediately before the date of the visa application on 28 August 2015.

17. On the basis of the above findings, the tribunal finds that the applicant meets the requirements of cl.485.231 (3). 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(3) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member