Hao (Migration) - [2018] AATA 4388

Hao (Migration) [2018] AATA 4388 (21 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Yun Hao
Mr Kai Chen
CASE NUMBER:  1617265
HOME AFFAIRS REFERENCE(S):           BCC2016/2739878
MEMBER:Amanda Mendes Da Costa
DATE:21 September 2018
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(1) of Schedule 2 to the Regulations

Statement made on 21 September 2018 at 1:09pm
CATCHWORDS
MIGRATION – Skilled (Provisional (Class VC) – Subclass 485 (Temporary graduate) – Post-Study Work stream – ‘Australian study requirements’ – prior learning accredited to Bachelor’s degree qualification – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cl 485.231
CASES
Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCAFC 145
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 September 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 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
The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.231(1) of Schedule 2 to the Regulations.
The Tribunal has perused both the files of the Department and the Tribunal. On consideration of the evidence before it, the Tribunal determined that a hearing was not required and that a decision on the review could be made on the basis of the documentation received.
The applicants were represented in relation to the review by their registered migration agent.
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?
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 Bachelor of Business (Accountancy) degree, which is a qualification specified in that instrument.
In her decision the delegate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 4388
Decision Date: 21 September 2018

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 485 (Temporary Graduate) visa application, specifically the Post-Study Work stream. The applicant sought to satisfy the 'Australian study requirements' for this visa subclass. The core dispute revolved around whether the applicant's prior learning, which had been accredited towards their Bachelor of Business (Accountancy) degree, met the specified requirements.

The Tribunal was required to determine whether the applicant held a qualification specified by the Minister and, crucially, whether their study satisfied the 'Australian study requirement' as defined by clause 485.231 of the Migration Regulations. This involved interpreting whether recognised prior learning, credited towards an eligible qualification, needed to have been undertaken at Australian Qualifications Framework (AQF) Level 7 or above, or if the eligible qualification itself, obtained at AQF Level 7, was sufficient.

The Tribunal reasoned that the delegate had erred in finding that the applicant's recognised prior learning had to be undertaken at AQF Level 7 or above. Instead, the Tribunal considered that the applicant held an eligible qualification, a Bachelor of Business (Accountancy) conferred by RMIT University, which is at AQF Level 7. The Tribunal accepted the applicant's submission that the wording of clause 485.231(1) and the relevant instrument did not mandate that prior learning contributing to a degree must itself be at AQF Level 7, but rather that the resulting qualification must be obtained as a result of study at AQF Level 7.

Consequently, the Tribunal concluded that the applicant met the criterion under clause 485.231(1). The Tribunal remitted the visa applications for reconsideration by the Minister, with the direction that the applicant satisfied this specific criterion for the Subclass 485 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEClause 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? 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 Bachelor of Business (Accountancy) degree, which is a qualification specified in that instrument. In her decision the delegate stated:The Academic Transcript from RMIT University states that you received 12 Transfer Credits from other study and that you completed 12 units of your Bachelor of Business (Accountancy), leading to the completion of the Bachelor degree.Any recognised prior learning must have been undertaken at the Australian Qualifications Framework (AQF) Level 7 or above and have contributed towards an eligible qualification. Whilst you hold an eligible qualification (bachelor), you have received 12 exemptions/specified credit from your other courses of study which contributed towards the completion of the eligible qualification.Accordingly to the AQF website, a Bachelor degree is at the AQF level 7 and is acceptable. The Advanced Diploma is at the AQF level 6, the Diploma is at the AQF level 5 and the certificate IV at the AQF level 4. Therefore I cannot be satisfied that your recognised prior learning was undertaken at the AQF level 7 and above. I find that you are unable to satisfy paragraph 485.231 and are therefore unable to satisfy the requirements of regulation 485.231. The Tribunal notes that the applicant’s representative provided it with written submissions dated 25 September 2017. These submissions may be summarised as follows:·The applicant holds a Bachelor of Business (Accountancy) which was conferred by RMIT University.·The applicant’s previous studies included 12 units which were credited to his Bachelor of Business (Accountancy) degree.·There is nothing in the wording of cl.485.231(1) or IMMI 13/013 which suggests that any prior learning which contributes to a degree qualification, be undertaken at the Australian Qualifications Framework (AQF) Level 7.·A Bachelor’s Degree satisfies the requirements of cl.485.231(1) as it is a qualification obtained as a result of study undertaken at the AQF Level 7. The applicant’s representative referred the Tribunal to a number of authorities including the decision of the Full Court of the Federal Court in Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCAFC 145, in which the Court observed that the context and purpose of a legislative provision are important to its proper construction.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the first named applicant meets cl.485.231(1). The appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.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(1) of Schedule 2 to the Regulations.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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