1606452 (Migration)

[2016] AATA 4116

1606452 (Migration) [2016] AATA 4116 (19 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Nath

CASE NUMBER:  1606452

DIBP REFERENCE(S):  BCC2016/469182

MEMBER:Glen Cranwell

DATE:19 July 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 19 July 2016 at 11:34am

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 19 April 2016 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 1 February 2016. 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(1) of Schedule 2 to the Regulations.

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

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(1) of Schedule 2 to the Regulations. That requires that the applicant hold a qualification or qualifications of a kind specified by the Minister in an instrument in writing for the purposes of the subclause.

7. The Minister specified for the purposes of cl.485.231(1) the following qualifications that are the result of study undertaken at AQF level 7 or higher:

   ·Bachelor Degree

   ·Bachelor (Honours) Degree

   ·Masters by Coursework Degree

   ·Masters by Research Degree;

   ·Masters (Extended) Degree; and/or

   ·Doctoral Degree.

8. It is not in dispute that the applicant holds a Bachelor of Commerce awarded by Griffith University on 13 January 2016.  However, his academic transcript reveals that the award was based partly on transfers of credit from the completion by the applicant of a Diploma of Commerce and an Associate Degree in Commerce and Business.  While a bachelor degree is at AQF level 7, an associate degree is at AQF level 6. 

9. The applicant provided the following letter from Griffith University dated 4 March 2016 explaining his entry into the associate degree program:

   Mr NATH enrolled into the Diploma of Commerce program June 24 2013 and completed this February 1 2014. On completion of this Diploma Mr NATH achieved a GPA of 4. The GPA requirements at this time to enter the 1035 Bachelor of Commerce were 4.5. As the student did not meet this hurdle he was not able to enter the Bachelor program after the Diploma.

   As a result of not achieving the GPA hurdle Mr NATH was offered to do the Associate Degree in Commerce and Business with the College. The Associate Degree in Commerce and Business is a two-year program leading to the third year of the Griffith University Bachelor degree. The Associate Degree assists Griffith College Diplomas of Commerce and Hotel Management graduates who do not meet relevant entry requirements for the Griffith degree, by providing a further year of study in the College's supportive environment. The Associate Degree is equivalent to two years of the Griffith University degree. Mr Nath did his first year under the Diploma and second as the Associate Degree.

   Mr Nath enrolled into the Associate Degree February 24, 2014 and completed the program January 21, 2015 with a GPA of 5.86. This then meant that the student had achieved the hurdle and was then eligible to enter the 3rd of the 1035 Bachelor of Commerce at Griffith University.

10. While the applicant does have a bachelor degree, being one of the qualifications specified in the instrument, the words “that are as a result of study undertaken at Australian Qualifications Framework level seven or higher” in IMMI 13/013 must be interpreted in a manner which gives them work to do.  In the Tribunal’s view, this phrase makes it clear that it is not a case of “all roads lead to Rome” in terms of how the specified qualifications are obtained.  In the present case, the applicant’s bachelor degree was in part the result of study undertaken at AQF level 6.  This does not meet the requirement that his bachelor degree be the result of study undertaken at AQF level 7 or higher.  In these circumstances, the applicant does not meet cl.485.231(1).

11. The Tribunal notes that the representative has referred to the Policy and Advice Manual (PAM) for guidance as to the interpretation of cl.485.231(1). However, the Tribunal considers that the meaning is clear on its face and the PAM does not fall within any of the categories of extrinsic material mentioned in s.15AB of the Acts Interpretation Act 1901.

12. 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 will be affirmed.

    DECISION

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

    Glen Cranwell
    Member