Gill (Migration)

[2019] AATA 728

Gill (Migration) [2019] AATA 728 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Beant Kaur Gill
Mr Parminder Singh Gill

CASE NUMBER:  1812430

DIBP REFERENCE(S):  BCC2018/1186033

MEMBER:Ian Berry

DATE:11 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for a Skilled (Provisional) (Class VC) visa 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 11 April 2019 at 11:02am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – study requirements – study for two academic years – Master of Business Administration –  Master of Professional Accounting – applicant’s study exceeded two academic years – course finished within six months of visa application – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 1.15F(1), cls 485.311, 485.231

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 26 April 2018 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (Ms Gill) applied for the visa on 13 March 2018. The delegate refused to grant the visa because Ms Gill did not satisfy the Australian study requirement in the six months ending immediately before the day on which the visa application was made and also found she had not satisfied having studied for at least two academic years.

3. The applicants appeared before the Tribunal on 27 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Wang.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issues are whether Ms Gill satisfied the following:

   a.Did Ms Gill holds qualifications of a kind specified by the Minister is detailed in an instrument in writing: IMMI 13/013?

   b.Was each of Ms Gill’s qualifications conferred by an educational institution specified by the Minister in an instrument in writing: IMMI 13/031?

   c.Did Ms Gill satisfy the Australian study requirement by completing at least two academic years of study?

7. In applying for the 485 (Post-Study Work stream) visa, Ms Gill completed two degree courses with the Holmes Institute[1] the details of which are:

   a.Master of Business Administration (MBA) with the starting date of 7 November 2016 and the finishing date of 31 December 2017. According to CRICOS, a duration of 78 academic weeks; and

   b.Master of Professional Accounting (MPA) with the start date of 6 November 2017 and finishing on 31 March 2018, with CRICOS provider the duration for this course at 78 weeks.

   [1] Tribunal file – folio is 33 and 34.

8. The Holmes Institute summary provided an explanation of the weeks of study completed by Ms Gill. She required 92 weeks of academic years of study (two academic years).[2] Each of the courses completed by Ms Gill consisted of 78 CRICOS weeks. Because of a duplication of the subjects in both the registered courses, Ms Gill could not claim 156 weeks.

   [2] Tribunal File: folio 31 – Homes Institute dual master award combined course duration 104 CRICOS weeks.

9. There are 12 subjects for each Degree. Eight subjects in each Degree are shared and four subjects are unique to each Degree. For example, the MPA has 12 subjects of which eight are shared with the MBA course and four subjects are exclusive to each Degree. The first registered course awarded Ms Gill a credit of 78 weeks. The second course has only four subjects unique to the MPA. Holmes Institute summarises the academic years of study by Ms Gill, as

   “Therefore, a student can complete in this case 12 subjects in the MPA (76 CRICOS weeks) and be awarded eight credit exemptions into the MBA. This leaves an additional four subjects (26 CRICOS weeks) unique to the MBA to be completed in order to be awarded the second Degree. On this basis the students would have undertaken 16 subjects (12 MPA +4 MBA), studied 4 semesters full-time and have completed the equivalent of 100 for CRICOS weeks in the time period more than 16 months.”

10. The Australian study requirement is set out in r.1.15F(1) of the Regulations. Ms Gill needs to complete the following requirements for the course or courses undertaken by her:

    a.   They are registered courses;

    b.   Completed in a total of at least 16 calendar months;

    c.   Were completed as a result of at least two academic years’ study (92 weeks);

    d.   All instruction was conducted in English; and

    e.   Ms Gill undertook the studies while in Australia and the holder of a visa authorising her to study.

11. The Tribunal is satisfied:

    a.   The registered courses undertaken by Ms Gill were with and educational institution recognised IMMI 13/031.

    b.   Ms Gill holds qualifications of the kind specified in IMMI 13/013.

    c.   The weeks taken to complete both courses and to be used in the calculation of the number weeks studied, exceeded 92 weeks (two academic years).

    d.   The MPA was completed within six months of Ms Gill making her application for this visa on 13 March 2018.

    e.   Ms Gill completed her studies while holding a visa enabling her to study in Australia.

12. Therefore, the Tribunal is satisfied and finds Ms Gill has completed all the requirements of cl. 485.231 and remits the visa application to the Minister to consider the remaining criteria for the visa.

13. As Ms Gill has succeeded in her application review, the second named applicant as a member of the family unit of Ms Gill now satisfies Cl. 485.311.

    DECISION

14. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa 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.

Ian Berry
Member