Goh (Migration)

[2018] AATA 4686

Goh (Migration) [2018] AATA 4686 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simon Chung Chin GOH

CASE NUMBER:  1618061

HOME AFFAIRS REFERENCE(S):           BCC20162794383

MEMBER:Amanda Mendes Da Costa

DATE:9 October 2018

PLACE OF DECISION:  Melbourne

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.485.231 of Schedule 2 to the Regulations.

Statement made on 09 October 2018 at 11:36am

CATCHWORDS
MIGRATION – Skilled (Provisional)(Class VC) – Subclass 485 (Temporary Graduate) – Post study work stream – ‘Australian study requirement’ – Master’s degree from recognised institution – completed within timeframe – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15, 2.26AC Schedule 2 cl 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 and Border Protection on 14 October 2016 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 23 August 2016. 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 Departmental records indicated that the applicant was physically present in Australia for a period of 13 months during the period of his Master of Supply Chain and Logistics studies and the delegate found that this was short of the minimum required 16 months study under Regulation 485.231(3).

4. The applicant appeared before the Tribunal on 8 October 2018 to give evidence and present arguments.   

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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.

   Does the applicant hold a specified qualification?

7. 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 IMMI 13/013. In this case, the applicant holds a Master degree in Supply Chain and Logistical Management which is a qualification specified in that instrument.

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

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

9. 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.

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

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

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

12. 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.

13. 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 one 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. ‘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.

15. The Tribunal was provided with a Statement of Academic Completion by RMIT University whish shows that the applicant successfully completed a Master degree in Supply Chain and Logistical Management at that university.  The applicant’s studies commenced on 21 July 2014 and were completed on 11 July 2016 and the program duration is listed as Two Years Full-Time or Equivalent Part-Time. 

16. Departmental records indicate that the applicant was present in Australia during the following periods:

    ·12/07/2014 to 31/10/2014;

    ·04/03/2015 to 10/06/2015;

    ·27/07/2015 to 30/10/2015;

    ·25/02/2016 to 5/06/2016; and

    ·from 22/07/2016 to the present date.

17. The applicant confirmed these dates in his oral evidence. He told the Tribunal that the majority of his subjects in the Master degree were assessed by assignments rather than exams and he was able to complete and submit them off-campus.

18. The Tribunal is satisfied that the applicant completed a degree qualification, being a Masters of Supply Chain and Logistics, as defined by r.2.26AC(6) in the 6 months immediately before the visa application was made.

19. The Tribunal is further satisfied that the qualification was as a result of a course that was:

    ·a registered course as defined in r.1.03;

    ·completed (as defined in r.1.15F(2) in a total of at least 16 calendar months;

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

    ·for which all instruction was conducted in English; and

    ·while holding a visa authorising study.

20. The Tribunal finds that whilst r.1.15(1)(b) of the Regulations requires an applicant’s course of study to have been completed in a total of at least 16 calendar months, there is nothing in r.1.15F(1) to suggest that an applicant must have been physically present in Australia for a minimum period of 16 months during his/her course of study. The Tribunal further notes that the applicant’s study for each subject was not completed when formal lessons ceased, but when he submitted all required examination papers and assignments; his work had been examined; a grade was given and recorded by the university.

21. Accordingly the Tribunal is satisfied that the applicant’s course of study was completed in at least 16 calendar months, even though he was not physically present on the university campus for all of those months.

22. Accordingly, 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 and cl.485.231(3) is met.

23. 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

24. 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.485.231 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member