Hor (Migration)

[2021] AATA 5513

Hor (Migration) [2021] AATA 5513 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Wai Kiat Hor

REPRESENTATIVE:  Ms Yen Bach Thi Ho

CASE NUMBER:  2115823

HOME AFFAIRS REFERENCE(S):          BCC2020/429030

MEMBER:K. Chapman

DATE:15 December 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 criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations.

Statement made on 15 December 2021 at 10:37am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Pharmacy (Honours) – academic transcript – completion of academic requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231

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 21 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 14 February 2020. 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 (Cth) (‘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 met the Australian study requirement, within the 6 months immediately prior to the visa application, as required by cl.485.231 of Schedule 2 to the Regulations.

4. On 4 November 2021, the applicant submitted documentary material demonstrating completion of the academic requirements for their award within the 6 months prior to the 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 in an instrument.

9. The applicant holds a Bachelor of Pharmacy (Honours) from The University of Queensland. This is a qualification specified in the relevant instrument.

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

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

11. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister in an instrument.

12. In this case, the applicant’s qualification was conferred or awarded by The University of Queensland which is an educational institution specified in the relevant instrument.

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

    Does the applicant meet the Australian study requirement?

14. 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.

15. 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.

16. ‘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.

17. The Tribunal notes the applicant submitted his academic transcript, confirming satisfaction of the academic requirements for their award on 27 November 2019.

18. Following careful consideration of the evidence, including the recent correspondence from the applicant’s education provider and material concerning academic results, the Tribunal is satisfied that the applicant has satisfied the Australian study requirement (in all relevant respects including, inter alia, course duration, delivery and content).

19. 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 therefore meets the requirements of cl.485.231(3).

20. 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

21. 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