Cui (Migration)

[2024] AATA 1200

Cui (Migration) [2024] AATA 1200 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jie Cui

CASE NUMBER:  2119460

HOME AFFAIRS REFERENCE(S):          BCC2021/40230

MEMBER:George Hallwood

DATE:16 May 2024

PLACE OF DECISION:  Adelaide

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 16 May 2024 at 4:33pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – two academic years of relevant study – courses completed within 6 months before visa application – university confirmed completion date – decision under review remitted          

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231 - 485.235; rr 1.03, 1.15

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 November 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2021. 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 (Cth) (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 the criteria in Subdivision 485.23.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because they found that the course was completed after the application was made.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

   Does cl 485.231 apply to the applicant?

6. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

   Does the applicant hold a specified qualification?

7. Clause 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 LIN 23/023. In this case, the applicant holds a Master of Teaching Early Childhood which is a qualification specified in that instrument.

8. Therefore, the applicant satisfies cl 485.231(1).

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

9. Clause 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 LIN 23/021.

10. In this case, the applicant’s qualification was conferred or awarded by the University of South Australia which is an educational institution specified in that instrument.

11. Therefore, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

12. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

13. Under reg 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.

14. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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.

15. Documentation provided by University of South Australia dated 8 December 2021 demonstrates:

    ·     The applicant completed the requirements for the award of MMET – Master of Teaching as defined (reg 2.26AC(6));

    ·     The qualification was the result of a course that was:

    o   a registered course as defined (reg 1.03);

    o   completed over a period of six years (see reg 1.15F(2));

    o   as a result of at least 2 academic years study;

    o   instructed in the English language;

    o   while the applicant held a visa authorising study;

    ·     The applicant completed the study requirements on 11 March 2021 which was in the six months immediately before the day the application was made on 15 March 2021;

16. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

    CONCLUDING PARAGRAPH

18. 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

19. 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.

    George Hallwood
    Member