Ha (Migration)

[2021] AATA 3121

Ha (Migration) [2021] AATA 3121 (21 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trong Vinh Ha

CASE NUMBER:  1904100

HOME AFFAIRS REFERENCE(S):          BCC2018/5629986

MEMBER:K. Chapman

DATE:21 July 2021

PLACE OF DECISION:  Brisbane

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.485.221 of Schedule 2 to the Regulations; and

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 21 July 2021 at 3:16pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Australian study requirements met – qualification is a registered course – qualification ‘closely related’ to the nominated occupation – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 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 Home Affairs on 13 February 2019 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, Mr Trong Vinh Ha, applied for the visa on 13 December 2018. 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, in their view, the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations, as he did not satisfy the Australian study requirement in the period of 6 months immediately before the day the visa application was made. The delegate determined that the applicant’s Graduate Diploma in Business (Accounting), from the Queensland University of Technology (QUT), was not a qualification sufficient for the applicant to satisfy the Australian study requirement.

4. Of relevance to the present matter, the applicant also successfully completed an Associate Degree in Commerce and Business from the Queensland Institute of Business and Technology (QIBT) at Griffith University and a Bachelor of Commerce (Accounting) at Griffith University. The applicant’s study for his three Australian qualifications took place onshore between 2011 and 2018. The applicant’s nominated skilled occupation for the visa is Accountant (General) (ANZSCO 221111).

5. The Tribunal did not consider a hearing to be necessary in this matter, 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 cl.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 before 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.

   Does the applicant meet the Australian study requirement?

8. Pursuant to r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if they satisfy the Minister that they 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.

9. ‘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 review, one ‘academic year’ is specified by the Minister to be at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.

10. Regulation 2.26AC(6) provides as follows:

    ‘degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:

    (a)  the entry level to the course leading to the qualification is:

    (i)   in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    (ii)   in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    (iii)  in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    (iv)  in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    (b)  in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

    diploma means:

    (a)  an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or

    (b)  a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.’

11. In the view of the Tribunal, the Graduate Diploma in Business (Accounting) completed by the applicant satisfies the definition of ‘degree’ provided in r.2.26AC(6). This is because that qualification is classified Level 8 within the Australian Qualifications Framework (AQF), the ‘entry level course’ leading to that qualification in the present matter is the Bachelor of Commerce (Accounting) and the term ‘postgraduate diploma’ is synonymous with a ‘graduate diploma’.

12. According to documents from the Queensland University of Technology (QUT) submitted by the applicant, he completed the academic requirements for the Graduate Diploma in Business (Accounting) on 6 July 2018. This is within the 6 months immediately before the Subclass 485 visa application was made. Taken globally, the applicant studied the Associate Degree in Commerce and Business from the Queensland Institute of Business and Technology (QIBT) at Griffith University, the Bachelor of Commerce (Accounting) at Griffith University and the Graduate Diploma in Business (Accounting) at QUT between 2011 and 2018. These studies took place in Australia over a period in excess of 16 calendar months and as a result of more than 2 academic years of study.

13. Griffith University and the Queensland University of Technology are duly authorised education providers, the relevant studies are registered courses in accordance with r.1.03, and all instruction for these studies was conducted in the English language. Further, the applicant held a Student visa at all relevant times during the completion of his studies. Accordingly, the Tribunal is satisfied that the applicant met the Australian study requirement for the purpose of the Subclass 485 visa.

14. Following careful consideration of the evidence, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

    Is the qualification ‘closely related’ to the nominated occupation

    ?

15. In addition, cl.485.222 requires the qualification(s) used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I).

16. In the present matter, the applicant nominated the occupation of Accountant (General) (ANZSCO 221111) which is a skilled occupation specified in the relevant Legislative Instrument. In the view of the Tribunal, the applicant’s qualifications in Commerce and Accounting are closely related to the applicant’s nominated skilled occupation. Additionally, the Tribunal notes that the applicant has obtained a positive skills assessment from CPA Australia Ltd in his nominated skilled occupation. Accordingly, the Tribunal finds that the applicant’s qualifications are closely related to the nominated skilled occupation and he satisfies cl.485.222.

17. On the basis of the above reasons, the Tribunal finds that the applicant meets the requirements of cl.485.221 and cl.485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. 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.485.221 of Schedule 2 to the Regulations; and

    ·cl.485.222 of Schedule 2 to the Regulations.

    K. Chapman
    Member