ALRABABAH (Migration)

[2018] AATA 4391

ALRABABAH (Migration) [2018] AATA 4391 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Odai Sameer Mohammad ALRABABAH
Mr ZHENDONG LAN

CASE NUMBER:  1715477

HOME AFFAIRS REFERENCE(S):           BCC2017/1457141

MEMBER:Jennifer Cripps Watts

DATE:19 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 19 September 2018 at 4:06pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – ‘Australian study requirements’ – definition of postgraduate diploma – graduate diploma qualification – completed within 6 months of application – obtained Masters qualification post visa application – Master’s degree not relevant to review – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC Schedule 2 cl 485.231

CASES
Bhatt v Minister for Immigration and Citizenship [2012] 262 FLR 219

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 and Border Protection on 11 July 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 April 2017. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.231

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the applicant’s study for the qualification or qualifications did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 19 September 2018 to give evidence and present arguments.

5. The applicant was invited to provide documentary evidence before the hearing.  The Tribunal requested, in writing, that the secondary applicant be available to give evidence if necessary.  These matters were discussed at the hearing with the applicant’s migration agent, who provided some documents at the hearing and said that she had not received any email from the Tribunal requesting the secondary applicant be available to give evidence.  She was told that the Tribunal did not accept this excuse.

6. The applicant requested the assistance of an Arabic interpreter and one was made available by the Tribunal.  At the beginning of the hearing, the applicant indicated he did not need the interpreter.  However, the interpreter remained present at the hearing, but was not required to assist.  The Tribunal was satisfied the applicant participated fully in the hearing in the English language.

7. The applicants were represented in relation to the review by their registered migration agent, Hong Fang, Migration Agent Registration Number 0534103.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

9. Included in the visa application is the secondary applicant, Zhendong Lan, who has been included in the application that is the subject of this review on the basis of being a member of the family unit of the applicant.  He is currently awaiting review by the Tribunal (application lodged on 12 February 2018) for the refusal of his student visa – his matter has not yet been constituted to a member.  Mr Lan did not attend the hearing.  The Tribunal is satisfied he was properly invited to the hearing and that he elected not to attend and give evidence.

10. The applicant, who said he currently works as a part-time accountant for his migration agent, Ms Hong Fang, gave oral evidence that he and Mr Lan have been in a de facto relationship with each other since they registered the relationship in December 2016.  The applicant said that they live together at a flat in Jones Street, Ultimo (the address in his visa application) with two Chinese ladies and that Mr Lan works in real estate.

11. The applicant said that he has taken a number of trips offshore, to Jordan and America and that the trips to America are to accompany his mother (who lives in Jordan) when she travels there for medical treatment in Houston.  The applicant said that his partner does not accompany him on these trips.

12. The Tribunal asked the applicant whether either he or Mr Lan had any other visa applications with the Department or any matters awaiting review with the Tribunal. He said he thought that his migration agent had lodged another 485 visa application for him the day before the hearing, but then said he was not sure whether she had done it yet. He said Mr Lan told him he has a student visa and said that he thought Mr Lan had no matters waiting for review by the Tribunal. He was informed, in line with statutory requirements in s.359AA, that the Tribunal system indicated there is a related matter for Mr Lan awaiting constitution to a member for refusal of a student visa. The applicant was given the usual s.359AA warnings, told that it was the Tribunal’s view that this is not relevant to his 485 visa application, but that it was of concern that he did not know the visa status of the person who is his de facto partner. He was asked if he wanted to respond or comment at the hearing or after and elected to comment at the hearing. He said, essentially, that Mr Lan told him that he had applied for a student visa and that said that he was not included as a secondary applicant in Mr Lan’s student visa application. No negative weight has been given to this matter in considering whether the applicant meets the criteria in cl.485.231.

    Does the applicant hold a specified qualification?

13. Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister.  The relevant instrument for this purpose is IMMI 13/013.  In this case, the applicant holds a Master by Coursework Degree and Graduate Diploma of Business which is a qualification that meets the definition of a qualification specified in that instrument.

14. Accordingly, cl.485.231(1) is met.

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

15. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031.

16. In this case, the applicant’s qualifications were conferred or awarded by the University of Technology and the Holmes Institute which are educational institutions specified in that instrument.

17. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

18. Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

19. 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,

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

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

    ·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.

20. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). 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.

21. ‘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 13/013).

22. Applicants for Subclass 485 visas must satisfy the requirement in the 6 months before the visa application was made and each degree, diploma or trade qualification used to satisfy the study requirement must be ‘closely related’ to the nominated skilled occupation.  Diploma has the meaning given in 2.26AC “a diploma or advanced diploma”.

23. ‘Diploma’ means an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.

24. ‘Degree’  means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma the entry level to the course leading to the qualification is:

    a.in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    b.in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    c.in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    d.in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    e.in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

25. In this matter, the Department appears to have taken the view that the applicant’s graduate diploma does not meet the definition of ‘degree’ in r.2.26AC(6) on the basis it did not consider the qualification to fall within the definition of a ‘postgraduate diploma’ (for the purpose of meeting the criteria). This view appears to be based on an erroneous understanding of the Court’s reasoning about graduate certificates in Bhatt and is also not supported by the wording in r.2.26AC(6). The Court in Bhatt appeared to use the terms ‘graduate diploma’ and ‘postgraduate diploma’ interchangeably and, further, the Australian Qualifications Framework uses the term ‘graduate diploma’ in place of ‘postgraduate diploma’.  These would support the view that ‘graduate diploma’ and ‘postgraduate diploma’ are the same qualification.  This is the Tribunal’s view.

26. The Tribunal has considered the evidence provided and is satisfied that the applicant completed a degree, diploma or other trade qualification (as defined: see r.2.26AC(6)) in the 6 months immediately before the application was made, relevantly, a Master of Financial Analysis at the University of Technology Sydney (provider [00099F]) between 30 November 2015 and 30 June 2016 and a Graduate Diploma of Business at the Holmes Institute (provider [02767C]), between 11 July 2016 and 31 July 2017); and that the qualifications were registered courses (as defined: see r.1.03) completed in a total of at least 16 calendar months, as a result of at least 2 academic years’ study; and that all instruction was conducted in English whilst holding a visa authorising study.

27. The Tribunal finds that the applicant’s study for the specified qualification or qualifications satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

28. Accordingly, cl.485.231(3) is met.

29. The applicant provided a document indicating that he has obtained a further qualification, a Master of Business Administration at Universal Business School Sydney, between 28 August 2017 and 17 August 2017.  It is accepted, but is not relevant to the review.

30. On the basis of the above findings, the Tribunal finds that the first named applicant meets cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

    The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member