Chan (Migration)

[2017] AATA 707

Chan (Migration) [2017] AATA 707 (3 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pak Hong Chan

CASE NUMBER:  1512239

DIBP REFERENCE(S):  BCC2015/1653344

MEMBER:D. Dimitriadis

DATE:3 May 2017

PLACE OF DECISION:  Sydney

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.485.221 of Schedule 2 to the Regulations

Statement made on 03 May 2017 at 5:12pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Accountant (General) – Course completed within 6 months preceding visa application date

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.221, cl 485.222

CASES
Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
Griffith University v Tang (2005) 221 CLR 99

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 August 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 10 June 2015. Visa Class VC contains Subclass 485. 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.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 18 April 2017 to give evidence and present arguments.  

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 Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets the requirements in cl.485.221.

7. The applicant applied for the visa and nominated the skilled occupation of Accountant (General). The applicant stated in the visa application that he has met the two year study requirement in the six months before the date of the application. The applicant stated that his qualification completed in Australia was a Bachelor of Commerce Accounting degree at Australian National University (ANU) from 14 February 2011 to 18 December 2014.

8. The applicant provided a number of documents to the Department of Immigration and Border Protection (the Department) including an award and program summary from ANU dated 12 December 2014 and a letter dated 12 December 2014 from ANU certifying that the applicant completed a Bachelor of Commerce.  

9. On 17 July 2015 the Department wrote to the applicant and invited him to provided further evidence including a completion letter for his Australian qualifications.   

10. On 23 July 2015 the Department wrote to the applicant and again requested that he provide further evidence including a formal letter of completion from ANU with respect to his Bachelor of Commerce because his academic transcript only confirms his award conferral date. The Department requested that the applicant provide a formal letter of completion to confirm the date on which he was formally deemed to have met or completed his study requirements for this qualification.    

11. On 11 August 2015, the applicant provided to the Department a letter of completion dated 24 July 2015 from ANU stating that he completed the Bachelor of Commerce degree on 5 December 2014.

12. The delegate was not satisfied that, as the applicant completed the Bachelor of Commerce on 5 December 2014 and applied for the visa on 10 June 2015, the applicant had completed the Bachelor of Commerce degree at Australian National University within the period of six months immediately before the visa application was made. The delegate found that the applicant did not satisfy cl.485.221 as he did not satisfy the Australian study requirement in the period of six months immediately before the visa application was made and did not meet the criteria for a Subclass 485 visa.

13. The applicant applied for review with the Tribunal and provided a number of documents including copies of the following:

    ·The delegate’s decision record;

    ·Copy of official ANU transcript stating that the applicant was approved on 10 December 2014 for the Bachelor of Commerce;

    ·Letter dated 13 May 2015 from M. Coulter, LLB/JD Program Coordinator at ANU College of Law; 

    ·Letter dated 31 August 2015 from E. Ciampa, Senior Graduation Office at ANU, stating that the applicant completed course requirements and was approved to graduate on 10 December 2014;

    ·Letter dated 4 September 2015 from K. Whitford, Director of Students and Learning, College of Business and Economics at ANU stating that the applicant was approved to graduate on 10 December 2014 having met the requirements of the program of Bachelor of Commerce.

14. In a letter dated 21 October 2015, the applicant stated that the official date he completed the course requirement was 10 December 2014. At time of application on 10 June 2015, the applicant already had an official transcript with the approval date of 10 December 2014. The ANU official website states that the approval date is the date that the applicant completed all the requirements for his award. The applicant stated that the Director of Students and Learning and the ANU Graduation Office confirmed that the applicant completed his course requirements on 10 December 2014.

15. The Tribunal held a hearing on 18 April 2017 and informed the applicant of the requirements of cl.485.221. The applicant stated that he completed his degree at ANU on 10 December 2014. This date was advised by the Graduation Officer. He does not have the original letters from ANU but he has the original email from ANU. The Tribunal informed the applicant that it is considering writing to ANU to ask which is the correct date, 5 December 2014 or 10 December 2014, because there are different dates on letters from ANU. The applicant stated that he wrote to the university to ask why the date was different. ANU agreed in a response that the completion date was 10 December 2014.

16. On 18 April 2017 the Tribunal wrote to the Dean of ANU College of Business & Economics and to Ms Joan Angel, Acting Registrar, Division of Student Administration of ANU and requested information including whether certain documents provided to the Department and the Tribunal were genuine. The Tribunal also requested that the university advise the date that the applicant completed the Bachelor of Commerce degree at ANU and asked for an explanation as to why there is a discrepancy in the dates of completion.

17. On 2 May 2017 the Tribunal received emails from Australian National University including an email from the Policy Officer, Academic Standards & Quality Office, stating that the letters signed by F. Mehr and K. Whitford are genuine. The Policy Officer stated that the applicant received his final grades on 5 December 2014 and was approved for graduation on 10 December 2014 and he was awarded his degree on 18 December 2014. The College (the letter from F. Mehr) gave the date that the student’s final results were released. The Graduation Office gave the date that the student was officially approved to graduate, “ie had been confirmed to have studied the required courses under the degree program orders and had studied the correct total number of units”. The Policy Officer also stated that K. Whitford supplied a final letter that answers the Department’s enquiries point for point.   

18. Clause 485.221 provides:

    The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the 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; 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.

20. ‘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).

21. In the judgement of the Federal Court of Australia in Sapkota v Minister for Immigration and Citizenship [2012] FCA 981, Cowdroy J stated at paragraph 24: ‘There are two necessary elements to achievement of academic results. One part is the student submitting all relevant items for assessment to the education provider. The second part is the education provider assessing these items and determining for itself whether the student has in fact achieved the academic result and awarding a result. The second part is essential. A student has no legal right to the award of a qualification unless a university decides for itself that the requisite requirements have been satisfied: see Griffith University v Tang (2005) 221 CLR 99 at [96].’

22. The Tribunal finds that a decision as to whether a student has satisfied the requirements of a course is entirely a matter for the education institution (Cowdroy J in Sapkota v Minister for Immigration and Citizenship [2012] FCA 981 at paragraph 26). The Tribunal finds that it is entirely a matter for Australian National University to decide whether the applicant met the academic requirements for the award of the Bachelor of Commerce degree. It was entirely a matter for ANU as to when the applicant completed the degree, Bachelor of Commerce.

23. The Tribunal has had regard to the evidence and is satisfied that the applicant completed the Bachelor of Commerce degree on 10 December 2014. This finding is based on the official ANU transcript stating that the applicant was approved on 10 December 2014 for the Bachelor of Commerce, the letter dated 4 September 2015 from K. Whitford, Director of Students and Learning, College of Business and Economics at ANU stating that the applicant was approved to graduate on 10 December 2014 and the email from the Policy Officer at ANU Academic Standards & Quality Office stating that the date, 10 December 2014, was the date when the applicant had been confirmed to have studied the required courses under the degree program orders and had studied the correct total number of units. 

24. The Tribunal is satisfied on the evidence that the applicant completed a Bachelor of Commerce on 10 December 2014 and this is in the period of 6 months ending immediately before the visa application was made on 10 June 2015.

25. The Tribunal is satisfied based on the official ANU transcript and the letter dated 4 September 2015 from K. Whitford, Director of Students and Learning, College of Business and Economics at ANU, that the applicant commenced the Bachelor of Commerce degree on 25 July 2011 (having transferred from a Bachelor of Arts degree, which he commenced on 21 February 2011). The Tribunal is satisfied that the course, Bachelor of Commerce, is a registered course (r.1.03). The applicant satisfies r.1.15F(1)(a).

26. The applicant completed the Bachelor of Commerce degree on 10 December 2014. CRICOS (Commonwealth Register of Institutions and Courses for Overseas Students) shows that at Australian National University, a Bachelor of Commerce has a course duration of 150 weeks. The Tribunal is satisfied that the degree completed by the applicant was completed in a total of at least 16 calendar months and was completed as a result of at least 2 academic years study. The applicant satisfies r.1.15F(1)(b) and (c).

27. The letter dated 4 September 2015 from K. Whitford, Director of Students and Learning, College of Business and Economics at Australian National University stated that all coursework and examinations are conducted in English. The applicant satisfies r.1.15F(1)(d).

28. The Tribunal has had regard to the applicant’s movement records and is satisfied that the applicant completed his degree while in Australia as the holder of a visa authorising him to study. The applicant held a Subclass 573 Student visa from 1 September 2009 to 15 March 2014 and held a further Subclass 573 visa from 21 March 2014 to 30 September 2015. The Tribunal is satisfied that the applicant undertook the course while in Australia as the holder of a visa authorising the applicant to study. The applicant satisfies r.1.15F(1)(e).

29. The applicant satisfies the Australian study requirement as he has completed a degree for award by an Australian educational institution as a result of a course that meets r.1.15F(a) to (e). The applicant completed a Bachelor of Commerce on 10 December 2014. He applied for the Subclass 485 visa on 10 June 2015.

30. On the basis of these findings the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

31. The Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. 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.485.221 of Schedule 2 to the Regulations.

    D. Dimitriadis
    Member