Choi (Migration)

[2021] AATA 1670

Choi (Migration) [2021] AATA 1670 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jae Sik Choi

CASE NUMBER:  1815774

HOME AFFAIRS REFERENCE(S):          BCC2018/1190172

MEMBER:R. Skaros

DATE:9 April 2021

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 criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations.

Statement made on 09 April 2021 at 5:22pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – academic year – Graduate Diploma – study duration of at least 92 weeks – completion in the 6 months before the visa application – decision under review remitted

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; rr 1.03, 1.15, 2.26

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 14 May 2018 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 13 March 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 was not satisfied the evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement as required by cl.485.221.

4. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the material before it.

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 which requires that the applicant 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 this requirement.

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘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, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: LIN 19/085.

9. In this case, the evidence before the Tribunal indicates that the applicant completed the following courses:

   ·Bachelor of Commerce from the University of Melbourne between 23 July 2012 and 9 July 2015;

   ·Master of Applied Finance from Monash University between 13 July 2015 and 5 December 2016; and a

   ·Graduate Diploma of Professional Accounting at Victoria University between 7 February 2017 and 28 November 2017

10. The delegate determined a graduate diploma was not an eligible qualification for the purpose of satisfying the Australian Study Requirement and was not satisfied that the applicant met the requirements of cl.485.221.

11. The applicant has provided copies of his academic transcripts for each of the above course. He has also provided letters of completion issued by the education providers for the Graduate Diploma and the Bachelor of Commerce. As noted above, the delegate found that the ‘graduate was not an eligible degree, diploma, or trade qualification as required by r.2.26AC(6), as such the Tribunal must consider these terms as set out in the relevant legislation.

12. Relevantly, the term ‘degree’ is defined in r.2.26AC(6) as a formal educational qualification, under the Australian Qualifications Framework (AQF), awarded by an Australian educational institution as a ‘degree’ or a ‘postgraduate diploma’. In the case of a ‘postgraduate diploma’ r.2.26AC(6)(a)(iv) also requires that the entry level to the course was the satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award.

13. The term ‘diploma’ is defined in r.2.26AC(6) as either: an ‘associate diploma’ or ‘diploma’ within the meaning of the Register of Australian Tertiary Education, awarded by a relevant body; or a ‘diploma’, or an ‘advanced diploma’, under the AQF, that is awarded by a relevant body.

14. The Register of Australian Tertiary Education refers to the education levels set out in the AQF. The Tribunal notes that the AQF lists a ‘diploma’ as level 5, an ‘advanced diploma’ at level 6, a ‘bachelor's degree’ at level 7, and a 'graduate diploma' at level 8.

15. The Tribunal considers that the applicant's Graduate Diploma course is not the same as a ‘diploma’ or ‘associate diploma’ but rather noting it is listed on the AQF at level 8, it is at a higher level than that of a Bachelor degree and is akin to a ‘postgraduate diploma’. The Tribunal finds that: the applicant’s Graduate Diploma of Professional Accounting aligns with that of a ‘postgraduate diploma’; the course falls within the definition of ‘degree’ within r.2.26AC(6); and that it is an eligible degree for the purpose of satisfying the Australian Study Requirements in r.1.15F.

16. Further, as both a Bachelor and a Master degree are specified as ‘degrees’ in r.2.26AC(6), the applicant’s Bachelor of Commerce and Master of Applied Finance, also fall with the definition of 'degree' and meet the requirement in r.1.15F.

17. Additional evidence before the Tribunal confirms that the applicant’s Bachelor of Commerce was registered on CRICOS as requiring 156 academic weeks of study and was undertaken over a period of over 35 months. His  Master of Applied Finance was registered on CRICOS as requiring 78 academic weeks of study and was undertaken over a period of over 16 months, and the Graduate Diploma was registered on CRICOS as requiring 52 academic weeks of study and was undertaken over a period of over 9  months. The applicant’s courses were conducted in English and were undertaken in Australia while the applicant held Subclass 573 and 500 visas permitting him to undertake the relevant study.

18. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

    ·the applicant's courses were degrees within the meaning of r.2.26AC(6), and the Graduate Diploma was completed in the 6 months immediately before the application was made;

    ·the courses were CRICOS registered courses:

    ·the courses were completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the courses were conducted in Australia while the applicant held student visas authorising study in Australia.

19. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant meets cl.485.221.

20. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member