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

1. 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).

2. 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

3. 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.

4. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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

7. 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 2015

   b.In March 2016, the applicant transferred to a Master of Professional Accounting at UNSW

   c.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 course

   d.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)

8. 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.

9. 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.

10. 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

11. The relevant instrument specifies that 2 academic years is 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 (ESOS). Regulation 1.15F(1)(c) will be satisfied, regardless of whether completion of the course involved benefit from credits, recognition of prior learning or the like.[1]  In Riaz, the Court held that ‘study’ in r.1.15(1)(c) denotes the activities educational institutions prescribe for the award of a degree, diploma or trade qualification and it is for those institutions to specify what is required for a person to complete a course that will result in the conferral of a relevant qualification, including the recognition of prior learning and course credits.  Accordingly, the relevant question for r.1.15F(1)(c) is whether an applicant for the visa had ‘completed’, as defined in r.1.15F(2), a course or courses that had been registered under the ESOS Act as having a duration of at least 92 weeks.[2]

    [1] See Riaz v MIBP [2013] FCCA 2244 (Manousardis J, 20 December 2013).

    [2] Riaz v MIBP [2013] FCCA 2244 (Manousardis J, 20 December 2013) at [41] & [50].

    Does the applicant hold a specified qualification?

12. 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 13/013.  In this case, the applicant holds a Master of Professional Accounting (Extension) which is a qualification specified in that instrument.  

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

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

14. 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.  The applicant’s qualification was conferred by the University of New South Wales, Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider code 00098G.

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

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

16. 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.

17. 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.

18. ‘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.

    Did the applicant complete a degree, diploma or other trade qualification in the 6 months immediately before the application was made

19. The applicant completed a Master of Professional Accounting (Extension) at UNSW on 27 July 2017.  It included credit for four subjects previously studied in the Master of International Business at UNSW.  ‘Completed’ in the Regulations, is defined as meaning having met the academic requirements for award of the qualification.  The Subclass 485 visa application that is the subject of this review was made on 31 August 2017.

20. The Tribunal has considered whether the Master of Professional Accounting (Extension) is a ‘degree’ as defined in r.2.26AC(6).  Degree is defined in the Regulations as a formal education qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution or of ‘an equivalent award’. 

21. In addressing the question of whether the Master degree is an equivalent award to a Bachelor degree or Diploma, the Tribunal notes a Diploma is AQF 5, a Degree is AQF 7 and a Master is AQF 9.  In interpreting r.2.26AC(6) the Tribunal is of the view a qualification at a level lower than a diploma or degree would not be considered to be ‘an equivalent award’ for the purpose of r.2.26AC(6), but a qualification at a higher level would be.  The Tribunal has concluded the Master Degree is at least 'an equivalent award’ for the purposes of r.2.26AC(6)(a)(iv).

    Was the specified qualification as a result of a course that was a registered course: r.1.03

22. Registered course means a course of education or training provided by, relevantly, an institution registered under Division 3 of Part 2 of the ESOS Act to provide the course to overseas students.  The Tribunal is satisfied that UNSW is an institution suitably registered.

    Was the specified qualification as a result of at least 2 academic years’ study

23. The specified qualification, Master of Professional Accounting (Extension), CRICOS code 055635K, is registered on CRICOS as a course of 104 weeks duration.  The applicant completed the course that resulted in conferral of the qualification.

    Was the specified course completed in a total of at least 16 calendar months

24. The applicant has provided a letter from UNSW, dated 25 October 2017, stating that she completed a two-year program, Master of Professional Accounting Extension (8415), and that the four subjects from the Master of International Business were credited to the Master of Professional Accounting Extension.  The applicant provided copies of her academic statement from UNSW for semesters 2/2015, 1/2016, 2/2016 and 1/2017, satisfying the Tribunal that she completed the specified course in a total of at least 16 calendar months.

    Was all instruction conducted in English

25. The Tribunal is satisfied that all instruction was in English.

    Did the applicant hold a visa authorising study during the relevant period

26. Departmental records indicate the applicant was granted a Subclass 573 student visa on 7 July 2015.  The Tribunal is satisfied that the applicant held a visa authorising study during the relevant period.

27. The applicant completed the Master of Professional Accounting (Extension) at UNSW on 27 July 2017.  She lodged her Subclass 485 visa application on 31 August 2017.

28. For the reasons given, 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.

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

30. 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

31. 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 Watts
    Member