Ho (Migration)

[2020] AATA 3157

Ho (Migration) [2020] AATA 3157 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ngai Hei Ernest Ho

CASE NUMBER:  1933184

HOME AFFAIRS REFERENCE(S):          BCC2019/4164622

MEMBER:K. Chapman

DATE:30 July 2020

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 criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations.

Statement made on 30 July 2020 at 2:14pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –  – post-study work stream – Australian study requirement – specified qualification with six months before application made – letter and academic transcript from Australian university – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)

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 18 November 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 22 August 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 they were not satisfied that the applicant completed his study of the Master of Agricultural Science at the University of Queensland within the 6 months prior to the visa application, therefore not meeting the requirements of cl.485.231 of Schedule 2 to the Regulations.

4. On 21 November 2019, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. In addition, the applicant submitted a letter from the University of Queensland dated 21 November 2019, confirming that he completed the course requirements for the Master of Agricultural Science on 3 July 2019 and that his studies took place over a period of two academic years. He also submitted a copy of his academic transcript. The Tribunal is satisfied with the authenticity of the aforementioned material, which is consistent with the applicant’s claims in his visa application.  

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. 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?

8. 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 Agricultural Science which is a qualification specified in that instrument. Accordingly, cl.485.231(1) is satisfied.

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

9. 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. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland which is an educational institution specified in that instrument. Accordingly, cl.485.231(2) is satisfied.

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

10. 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.

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

12. ‘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: instrument LIN 19/085.

13. The Tribunal notes the applicant provided a letter from the University of Queensland dated 21 November 2019, confirming that he completed the course requirements for the Master of Agricultural Science on 3 July 2019 and that his studies took place over a period of two academic years. The Tribunal has also considered the applicant’s submitted academic transcript and his claims in the visa application, finding them to be consistent with the aforementioned correspondence from the University of Queensland. On balance, the Tribunal is satisfied with the veracity of the submitted material.

14. Following careful consideration of the evidence, the Tribunal finds that the applicant satisfies the ‘Australian study requirement’ as a result of his completion of the Master of Agricultural Science at the University of Queensland on 3 July 2019.

15. Having regard to the above matters, the Tribunal is satisfied the applicant completed a Degree (as defined in r.2.26AC (6)) in the six months immediately before the visa application was made. The Tribunal is further satisfied that the qualification was as a result of a course that met the requirements of r.1.15F(1). Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application and he meets the requirements of cl.485.231(3).

16. In conclusion, the Tribunal finds that the applicant satisfies cl.485.231. 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 of Schedule 2 to the Regulations.

    K. Chapman
    Member