Hii (Migration)

[2019] AATA 4533

Hii (Migration) [2019] AATA 4533 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paul Kai Liang Hii

CASE NUMBER:  1914088

HOME AFFAIRS REFERENCE(S):           BCC2019/382085

MEMBER:Stavros Georgiadis

DATE:6 September 2019

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations

Statement made on 6 September 2019 at 4:03pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant holds  a specified qualification– Australian study requirements met – qualification is a registered course– decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F(1), 2.26AC, Schedule 2, cls 485.111, 485.231
Education Services for Overseas Students Act 2000

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 30 May 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 applied for the visa on 7 February 2019. 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 as the delegate found the applicant had not provided evidence of relevant coursework being completed in the last 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 6 September 2019 to give evidence and present arguments.

5. 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?

6. 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 of Engineering degree from the University of South Australia which is a qualification specified in that instrument: [Masters by Coursework Degree].

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

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

8. 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.

9. In this case, the applicant’s qualification was conferred or awarded by the University of South Australia which is an educational institution specified in that instrument, as the University of South Australia is a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider.

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

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

11. 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.

12. 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,

    ·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.

13. ‘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, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: [LIN 19/085].

14. The Tribunal has been provided with a copy of the applicant’s Academic Record from the University of South Australia in respect of the above course. This confirms that the applicant’s Master of Engineering (Civil and Infrastructure) degree was conferred on 20 December 2018. The visa application was made on 7 February 2019. Accordingly, the Tribunal is satisfied that the applicant completed a degree, diploma or other trade qualification (as defined: see r.2.26AC(6)) in the 6 months immediately before the application was made.

15. Further, the Tribunal is satisfied from the applicant’s oral evidence, Academic Record and letter of ‘Confirmation of Studies’ dated 30 May 2019 from the University of South Australia that that the specified qualification above was as a result of a course(s) that was:

    ·a registered course (as defined: see r.1.03)

    ·completed (as defined in r.1.15F(2)) in a total of at least 16 calendar months: [all academic requirements completed on 8 December 2018]

    ·as a result of at least 2 academic years (as specified) study: [2017 and 2018 full time]

    ·for which all instruction was conducted in English: [at the University of South Australia]

    ·while holding a visa authorising study: [Class TU500 granted on 3 February 2017 and valid until 15 March 2019].

16. The Tribunal finds that the applicant’s study for the specified qualification satisfied the ‘Australian study requirement’ on 8 December 2018 being within 6 months immediately preceding the date of the visa application made on 7 February 2019.

17. Accordingly, cl.485.231(3) is met.

18. 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

19. 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 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member