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

1. 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).

2. 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

3. 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.

4. 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.

5. The applicants were represented in relation to the review by their 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 Bachelor of Business (Accountancy) degree, which is a qualification specified in that instrument.

8. 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.  

9. 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.

10. 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.

11. The Tribunal accepts the submissions made on behalf of the applicant and is satisfied that the qualifications specified in IMMI 13/013 include a Bachelor degree. The Tribunal finds that although some of the units of study credited to the applicant’s Bachelor degree, may not have been studied at AQF Level 7, RMIT University has been satisfied that the applicant meets its requirements for a Bachelor of Business (Accountancy) degree. As the applicant holds a qualification specified in IMMI 13/013 for the purpose of cl.485.231(1), the Tribunal finds that it is not required to separate and individually evaluate the various units studied by the applicant and which contributed to her degree. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.485.231(1).

12. In relation to the secondary visa applicant, his entitlement to a visa is initially dependent on whether the applicant is successful in obtaining a Subclass 858 visa, and then on whether he meets the additional criteria for Subclass 858 visas.

13. 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

14. 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 Costa
    Member