CHENG (Migration) - [2019] AATA 447

CHENG (Migration) [2019] AATA 447 (5 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms SHA CHENG
CASE NUMBER:  1726731
HOME AFFAIRS REFERENCE(S):           BCC2017/3153735
MEMBER:Jennifer Cripps Watts
DATE:5 March 2019
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.485.231 of Schedule 2 to the Regulations
Statement made on 05 March 2019 at 5:58pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – undertaken two academic years (or 92 weeks) study in Australia – completed Master of Professional Accounting (Extension), CRICOS code 055635K – 104 weeks’ duration – delegate assessed incorrect course of shorter duration – subjects completed in unfinished Master of International Business course credited to final course – Australian study requirement 6 months preceding date of visa application satisfied – Decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 485.231 rr 1.15F(c), 1.15(1)(c), 1.15F(2), 2.26AC(6)
CASES
Riaz v MIBP [2013] FCCA 2244

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 October 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 31 August 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
The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because, as required by r.1.15F(c), the applicant had not undertaken two academic years (or 92 weeks) study in Australia.
The Tribunal was able to make a positive decision on the evidence before it and no hearing was required.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Applicant’s written submissions
The Tribunal has had regard to written submissions of the applicant’s migration agent, together with additional documents provided in support. The submissions and supporting documents included…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CHENG (Migration)

Details

AGLC: CHENG (Migration) [2019] AATA 447
Case: [2019] AATA 447
Decision Date: 5 March 2019

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Post-Study Work stream. The applicant sought review of a decision to refuse her visa application. The core of the dispute revolved around whether the applicant had satisfied the Australian study requirement, which mandates undertaking two academic years (or 92 weeks) of study in Australia.

The legal issue before the Tribunal was whether the applicant met the requirements of clause 485.231, specifically concerning the duration of her completed course and the consideration of prior study. The applicant contended that she had completed a Master of Professional Accounting (Extension), a course registered on CRICOS with a duration of 104 weeks, and that the delegate had incorrectly identified a shorter course. Furthermore, the applicant argued that subjects completed in a previously commenced, but unfinished, Master of International Business course should be credited towards the Australian study requirement, as these subjects were recognised and credited towards her completed Master of Professional Accounting (Extension).

The Tribunal reasoned that clause 485.231 requires the applicant to hold a specified qualification for which the Australian study requirement has been met in the six months preceding the visa application. The Tribunal accepted the applicant's submission that she had completed the Master of Professional Accounting (Extension), a course of 104 weeks' duration, and that the delegate had erred in identifying a different, shorter course. Crucially, the Tribunal found that Regulation 1.15F, which allows for the counting of previous study when an applicant changes courses, was satisfied. Although the Master of International Business was not completed, the four subjects undertaken in that course were credited to the Master of Professional Accounting (Extension) and resulted in the award of that degree.

Consequently, the Tribunal concluded that the applicant met the criterion under clause 485.231. The matter was remitted to the Minister for reconsideration of the remaining visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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.Applicant’s written submissions The Tribunal has had regard to written submissions of the applicant’s migration agent, together with additional documents provided in support. The submissions and supporting documents included the following information:a.The applicant enrolled in a Master of International Business at the University of New South Wales (UNSW) in July 2015b.In March 2016, the applicant transferred to a Master of Professional Accounting at UNSWc.In July 2016, the applicant transferred to a Master of Professional Accounting (Extension) and the four subjects she had completed in the Master of International Business were credited to this coursed.On 27 July 2017, the applicant completed the Master of Professional Accounting (Extension)e.The visa applicant was lodged on 31 August 2017 and the applicant was notified it had been refused on 19 October 2017 because the delegate was not satisfied the applicant met the 2 academic years Australia study requirement (r.1.15F) It is submitted that the applicant has satisfied the 2 years Australian study requirement by completing a Master of Professional Accounting (Extension), CRICOS code 055635K, and that the delegate stated she had completed a Master of Professional Accounting, CRICOS code 051221J, which is incorrect. What is relevant here is that the Extension course is registered on CRICOS as a course of 104 weeks’ duration and the other course is only 78 weeks. It is submitted that a previous partially completed course, commenced in semester 2/2015 – Master of International Business – should be taken into account. Specifically, the four subjects the applicant completed which were credited to the Master of Professional Accounting (Extension) at UNSW that the applicant completed in July 2017. Regulation 1.15F allows for previous study, where an applicant has changed courses, to be counted if it meets the requirements of r.1.15F and resulted in the award of the degree, diploma or trade qualification. Relevantly, the applicant did not complete the Master of International Business which she says should be taken into account. She says she completed four subjects before transferring to a different course and that those four subjects were credited to the Master of Professional Accounting (Extension) at UNSW for award of the degree. Does the 2 year study rule preclude consideration of credits given for study in Australia

Decision

Reasons for decision

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 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.Jennifer Cripps WattsMember

Ratio Decidendi

Legal Principle Established

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