Dang (Migration)

[2017] AATA 1862

Dang (Migration) [2017] AATA 1862 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Huynh Phuong Nga Dang
Mr Quang Thang Bui

CASE NUMBER:  1609014

DIBP REFERENCE(S):  BCC2016/893088

MEMBER:Antonio Dronjic

DATE:4 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·Cl.485.231 of Schedule 2 to the Regulations.

Statement made on 04 October 2017 at 10:10am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Study requirements met within 6 months before visa application made

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.231

cl.485.221, 485.222

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 on 31 May 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 March 2016. 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 refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant completed at least two academic years of study in Australia.

4. The applicants applied for a review of the delegates’ decision on 17 June 2016. With the review application the applicants submitted:

   ·Copy of the primary decision record;

   ·Letter from University of South Australia dated 2 June 2016 as evidence that the first named applicant has been enrolled into Master of Human Resource Management course from 1 July 2013 and completed all academic requirements for the award on 16 January 2016;

   ·Official Academic Transcript for both Graduate Certificate in Human Resource Management and Master of Human Resource Management issued to the first named applicant on 18 January 2016;

5. On 22 September 2017, the applicants’ representative submitted the following relevant documents:

   ·Legal submissions;

   ·Statement of the applicant Ms Huynh Phuong  Nga  Dang outlining the history of her studies in Australia;

   ·Copy Certificate of Enrolment into Graduate certificate in Human Resource Management;

   ·Copy Certificate of Enrolment into Master of Human Resource Management;

   ·Combined Academic Transcripts of the Graduate certificate in Human Resource Management and the Master of Human Resource Management of University of South Australia;

   ·Completion letter from University of South Australia dated 19 September 2017; and

   ·Email communication received from Ms Anne Mahlo, Student Adviser of the University of South Australia confirming normal study period of each subject ( 4.5 Units) at University of South Australia.

6. The first named applicant appeared before the Tribunal by telephone conference on 25 September 2017 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who attended the Tribunal hearing.

7. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

9. The Tribunal made the following findings based on the documents provided by the applicant to the Department and the Tribunal and the first named applicant’s oral evidence:

   ·Ms Nga Dang is a Vietnam citizen who completed her initial bachelor degree of International Relations in 2010 in Ho Chi Minh City, Vietnam. Her qualification obtained in Vietnam was not relevant to the Human Resource Management.  The University of South Australia offered the package course of Graduate Certificate in Human Resource Management leading to Master of Human Resource Management.

   ·The first named applicant lodged an application for subclass 485 visa (Post Study Work) stream on 4 March 2016;

   ·Between 1 January 2013 and 1 April 2014, the first named applicant completed Graduate Certificate in Human Resource Management at University of South Australia;

   ·The first named applicant commenced Master of Human Resource Management course at the University of South Australia on 4 June 2014 and completed it on 6 December 2015;

   ·PRISM records obtained by the Tribunal indicate that both Graduate Certificate in Human Resource Management and Master of Human Resource Management were CRICOS registered courses, conducted in English language of combined duration of 104 weeks.

10. In respect of subclause 485.231(1) the Minister has specified the qualifications in the instrument in writing, IMMI 13/013.

11. IMMI 13/013 provides that the following qualifications that are as a result of study undertaken at Australian Qualifications Framework level seven or higher:

    (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.

12. Based on the evidence before me, I am satisfied that the applicant’s Master of Human Resource Management course is a specified qualification and meets the requirement in cl.485.231 (1).

13. In respect of subclause 485.231(2) the Minister has specified in an instrument in writing, IMMI13/031, that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.  The Tribunal is satisfied that University of South Australia is registered on CRICOS and offer courses at degree level and above. Therefore the Tribunal is satisfied that subclause 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

14. 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.

15. ‘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, ‘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).

16. Although the Tribunal is not bound by policy, I considered the elements emphasised in PAM 3. In particular, the policy guidelines state the following in respect of Post-Study Work stream:

    The intention of 485.231(1) and the associated instrument is to support the policy objective that international students who undertake a Graduate Certificate or Graduate Diploma course which articulates into, or is nested in, a Bachelor or Master Degree be eligible for the Post-Study Work stream when they ultimately complete an eligible qualification.

    If a student completes more than one “acceptable” qualification but only the last qualification is being used to meet the Australian study requirement, then any credit received in that qualification from the previous qualification/s will count towards meeting the 2 academic years of study requirement, while the actual study within the previous qualification/s on which the credits were based is used towards meeting the regulation 1.15F(1)(b) 16 month requirement.

    …If they are using more than one course to meet the Australian study requirement, the courses must have a total registered duration of at least 92 weeks.

17. The applicant completed courses from 1 January 2013 to 6 December 2015 which is more than 16 consecutive months of study. Based on the completion latter and applicant’s statement of results I am satisfied that the courses were completed in a total of more than 16 calendar months. Therefore the first named applicant meet the requirements of r.1.15F(1)(b)

18. Based on the evidence before it, and in particular CRICOS extracts evidencing that the registered duration of Graduate Certificate in Human Resource Management course was 26 weeks (055258G) and registered duration of Master of Human Resource Management course (055260C) was 78 weeks I am satisfied that the first named applicant completed the total of 104 weeks of study. Accordingly I am satisfied that she meets requirements of r.1.15F (1)(a) and (c).

19. Based on the PRISM records, both courses were conducted in English language. The first named applicant therefore satisfies 1.15F (1)(d).

20. Departmental records confirm that the first named applicant was the holder of a visa authorising the applicant to study during this period.  Accordingly the applicant meets 1.15F (1)(e).

21. Based on the evidence before me and in particular completion letter from the University of South Australia I find that the applicant completed the requirements for the award of Master of Human Resource Management course on 6 December 2015 and therefore, I find that the applicant satisfied the ‘Australian study requirement’ set out in regulation 1.15F on this date, which is within six months immediately before the date of the visa application on 4 March 2016. Accordingly, the first named applicant meets cl.485.231(3).

22. On the basis of the above findings, the Tribunal finds that the first named applicant meets the requirements of cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

23. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·Cl.485.231of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member