Cheng (Migration)

[2019] AATA 3896

Cheng (Migration) [2019] AATA 3896 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kimberley Jia Xing Cheng

CASE NUMBER:  1915205

HOME AFFAIRS REFERENCE(S):           BCC2019/593966

MEMBER:Nicola Findson

DATE:2 September 2019

PLACE OF DECISION:  Perth

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 of Schedule 2 to the Regulations

Statement made on 02 September 2019 at 9:44am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post-Study Work stream – Australian study requirement met in required timeframe – holds specified qualification – Bachelor of Biomedical Science – qualification awarded by university specified in instrument – registered course – student visa holder – instruction conducted in English – course duration 3 academic years – completed in 16 months – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), Schedule 2, cl 485.231

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 Home Affairs on 30 May 2019 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 22 February 2019. 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 visa on the basis that the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

4. Prior to the hearing the applicant provided further evidence from the education provider – the University of Western Australia. On the basis of this information the Tribunal has been able to make a favourable decision and a hearing was not required.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Does the applicant hold a specified qualification?

8. 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, which specifies the following qualifications:

   (a)Bachelor Degree;

   (b)Bachelor (Honours) Degree;

   (c)Masters by Coursework Degree;

   (d)Masters by Research Degree;

   (e)Masters (Extended) Degree and/or;

   (f)Doctoral Degree.

   In this case, the applicant holds a Bachelor of Biomedical Science degree from the University of Western Australia, which is a qualification specified in that instrument.

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

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

10. 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 that specifies for the purposes of cl.485.231(2) that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offer courses at degree level and above.

11. The Tribunal has confirmed that the University of Western Australia is a CRICOS registered provider:  CRICOS Code 00126G. The Tribunal finds that the University of Western Australia offers courses at degree level and above.

12. In this case, the Tribunal is satisfied that the applicant’s qualification was conferred or awarded by an educational institution specified in the relevant instrument.

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

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

14. 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.

15. 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.

16. ‘Registered course’ and ‘completed’ are defined terms (see rr.1.03, 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 the Education Services for Overseas Students Act 2000: IMMI 09/040.

17. The applicant has provided the following evidence.  In her visa application lodged on 22 February 2019, the applicant stated that she completed a Bachelor of Biomedical Science at the University of Western Australia in the period 1 February 2016 to 1 December 2018.  

18. The applicant supplied a letter of enrolment from the University of Western Australia with her application.  The delegate’s decision, provided to the Tribunal by the applicant for the purposes of the review, records that this letter does not state that studies have been completed.  The Tribunal notes however, that the letter does in fact indicate that the applicant initially enrolled in a Bachelor of Science (commenced on 29 February 2016); she was permitted to have an end of degree transfer to the Bachelor of Biomedical Science; and she completed her degree on 26 November 2018.  The letter also states that the applicant was conferred with a Bachelor of Biomedical Science on 14 December 2018.

19. The Tribunal has received additional correspondence from the University of Western Australia, including a Graduation Statement dated 14 December 2018, as well as a Statement of Academic Record, which indicate the applicant completed all academic requirements of the Bachelor of Biomedical Science on 26 November 2018 and graduated on 14 December 2018.  The documents before the Tribunal also confirm the following:

    a.The course duration was 3 academic years (full time);

    b.All instruction was conducted in English;

    c.The course was completed in the period February 2016 to November 2018.

20. Evidence from the CRICOS database confirms that the applicant’s course is registered.  The applicant’s movement records confirm that she held a student visa while studying and was therefore authorised to study.

21. Having regard to all of the evidence the Tribunal is satisfied that the applicant completed a Bachelor of Biomedical Science on 26 November 2018, in the 6 months immediately before the visa application was made.  Having regard to the CRICOS website the Tribunal is also satisfied that the course was registered, of 156 weeks’ duration (or 3 academic years) and conducted in English. It was completed in the period February 2016 to November 2018, that is, in a total of at least 16 calendar months.

22. On this basis, the Tribunal is satisfied the applicant met the Australian study requirement in the 6 months immediately before the day the visa application was made.  Therefore, the applicant meets cl.485.231.

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

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

25. On the basis of the above findings, the Tribunal finds that the 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

26. 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 of Schedule 2 to the Regulations.

    Nicola Findson
    Member