Gui (Migration)

[2017] AATA 193

Gui (Migration) [2017] AATA 193 (7 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaowei Gui

CASE NUMBER:  1619098

DIBP REFERENCE(S):  BCC2016/2905906

MEMBER:Jennifer Ciantar

DATE:7 February 2017

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 criterion for a Subclass 485 visa:

·cl.485.231(3) of Schedule 2 to the Regulations

Statement made on 07 February 2017 at 10:16am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post-Study Work stream – Australian study requirement – Master of Engineering Science – CRICOS Register – Completed requirements

LEGISLATION
Migration Act 1958, s 65,
Education Services for Overseas Students Act 2000
Migration Regulations 1994, Schedule 2, r 1.03, r 1.15F, r 2.26AC(6), cl 485.111, 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 on 2 November 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 1 September 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 visa because the applicant did not satisfy cl.485.231(3) of Schedule 2 to the Regulations because the applicant did not satisfy the Australian study requirement as set out in r.1.15F(1)(c). The delegate found that the CRICOS registered duration of the Master of Engineering Science course completed by the applicant was 78 weeks.

4. The applicant applied to the tribunal on 14 November 2016 for review of the delegate’s decision. With the application, the applicant submitted the following documents:

   ·     A statutory declaration in which the applicant declared that she commenced a Master of Engineering at the University of New South Wales (UNSW) on 28 July 2014 and she transferred to a Master of Engineering Science on 2 March 2015 where she received credit for the 4 courses she finished in the first semester of the Master of Engineering. The subjects, Elec 4613, Elec 4617, Elec 9617 and GSOE 9820, which she finished in semester two of 2014 are also required courses for the Master of Engineering Science. She was awarded the Master of Engineering Science on 12 July 2016. The handbook shows the typical duration of this course is two years as does the Commonwealth register which shows the duration of course 0842824A to be 104 weeks, not 78 weeks. The Master of Engineering Science was of 1.5 years duration prior to 2014 when the program code was 8539. It changed to 8338 in 2015. Because she did not have to apply for another student visa she had not asked the University to send her a new confirmation of enrolment (CoE) after she transferred courses. However, since the visa was refused, at her request, the University has reissued the CoE with the correct course code and updated their system on 2 November 2016. She has completed 15 courses and 90 credit points, and the four subjects mentioned above are prerequisite subjects for the Master of Engineering Science. She also studied for at least 16 calendar months;

   ·     A certification dated 24 October 2016 from the Deputy Vice Chancellor Education, UNSW, which certifies that the applicant was awarded a Master of Engineering Science in Electrical Engineering;

   ·     A letter from UNSW dated 4 November 2016, which states that the university can confirm that the applicant originally received an offer for the Master of Engineering [067604G] to commence studies in semester 2, 2014 and that her initial confirmation of enrolment (668F3816) was issued for this program. In semester 1, 2015 the applicant transferred to the Master of Engineering Science [084282A]. Unfortunately due to clerical oversight the updated CoE (6F279299) was issued for the incorrect CRICOS code. This was bought to the university’s attention later after the applicant had completed her program. The correct program was the two-year Master of Engineering Science (084282A) and a new CoE was issued to the applicant on 2 November 2016 to reflect the correct program details. A copy is provided and the new CoE code is 8605C556. The University’s letter also states that it has included proof of the program transfer application to demonstrate that the program transfer was to a two-year CRICOS registered degree;

   ·     A copy of an email from the Office of the School of Electrical Engineering and Telecommunications which states that the applicant has received approval to transfer and receive credit for a specified course;

   ·     CRICOS print out which states that the duration of the Master of Engineering Science, course code 084282A is 104 weeks;

   ·     CoE 8605C556, for a Master of Engineering Science which gives the course start date of 2 March 2015 and the end date as 31 July 2016;

   ·     CoE 668F3816, for a Master of Engineering which gives the course start date as 28 July 2014 and the end date as 31 July 2016;

   ·     A copy of a ‘Postgraduate by Coursework’ program guideline for the School of Electrical Engineering & Telecommunications which lists the included courses;

   ·     A copy of the University’s 2015 handbook for Engineering Science – 8338 which states that the typical duration is two years and the degree is for students commencing from 2015 only;

   ·     The applicant’s academic transcript for a Master of Engineering Science and statement which indicates that the date of completion was 12 July 2016;

   ·     An enrolment statement issued by the University in respect of the applicant for semester 2 2014, semester 1 2015, semester 2 2015 and semester 1 2016.

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 Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations. This includes the requirement that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made.

   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, ‘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).

9. The applicant is relying on her Master of Engineering Science course 8338 (CRICOS code 084282A) at UNSW, which the new CoE issued on 2 November 2016, indicates began on 2 March 2015 and ended on 31 July 2016. However, the CoE also states that the applicant has transferred from another course. The applicant has provided evidence that in semester 2 of 2014 she was enrolled a Master of Engineering and at the end of semester 2, 2014 she was allowed to transfer from this course to the Masters of Engineering Science, which she commenced in semester 1, 2015.

10. The applicant has provided evidence from UNSW that she has been given credit for the 4 subjects, which she undertook in semester 2 of 2014 when she was enrolled in the Master of Engineering and that these subjects are also courses within the Master of Engineering Science. The applicant’s academic transcript for the Master of Engineering Science course includes these 4 subjects and gives the applicant’s enrolment history as semester 2, 2014, semester 1, 2015, semester 2, 2015 and semester 1, 2016, as does the enrolment statement issued by UNSW. The Tribunal accepts that the applicant received credit for the 4 subjects which the applicant undertook in semester 2, 2014 and the Tribunal is of the view that this semester should be included as part of the academic years study and the Master of Engineering Science.

11. The Tribunal has checked the CRICOS Register for the Master of Engineering Science course code 084282A, which the recently issued CoE states was the course in which the applicant was enrolled. The registration indicates that the duration is 104 weeks. Based on the evidence before it, including the letter from UNSW, the recently issued CoE and CRICOS extracts evidencing that the registered duration of a Master of Engineering Science course, which the applicant completed, was 104 weeks, the Tribunal is satisfied that the applicant meets the requirements of r.1.15F(1)(a) and (c).

12. Based on the completion letter and applicant’s statement of results the Tribunal is satisfied that the course was completed in a total of more than 16 calendar months. Accordingly the applicant meets 1.15F(1)(b).

13. The Tribunal is satisfied that all instruction for the Master of Engineering Science course was conducted in English. The applicant therefore satisfies 1.15F(1)(d).

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

15. Based on the completion letter from UNSW the Tribunal finds that the applicant completed the requirements for the award of Master of Engineering Science on 29 July 2016 and therefore, the Tribunal finds 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 1 September 2016.

16. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.231(3). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. 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(3) of Schedule 2 to the Regulations.

    Jennifer Ciantar
    Member