Jin (Migration)

[2023] AATA 3128

Jin (Migration) [2023] AATA 3128 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Huifen Jin

CASE NUMBER:  2006167

HOME AFFAIRS REFERENCE(S):          BCC2019/6556234

MEMBER:Peter Katsambanis

DATE:15 September 2023

PLACE OF DECISION:  Perth

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 September 2023 at 11:26am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – course completed within six months before application made – statement of academic record and conferral of degree dated three days after application made – course completed when academic requirements met – amended thesis lodged and acknowledged before application made, followed by administrative steps unrelated to academic requirements – detailed oral and documentary evidence – ‘completed’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), (2), 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 11 March 2020 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 9 December 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 (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 the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met the Australian study requirement in subclause 485.231(3).

4. The applicant appeared before the Tribunal on 15 September 2023 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

6. 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 Doctor of Philosophy (Ph D) from Edith Cowan University (ECU), which is a qualification specified in that instrument.

8. Accordingly, cl 485.231(1) is met.

   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.

10. In this case, the applicant’s qualification was conferred or awarded by Edith Cowan University which is an educational institution specified in that instrument.

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

    Does the applicant meet the Australian study requirement?

12. 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.

13. Under reg 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.

14. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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.

15. The issue in dispute in this case is whether the applicant completed her relevant degree in the 6 months immediately before the application was made.

16. The applicant made her application on 9 December 2019. Her relevant degree, being her Ph D, was conferred on her by ECU on 12 December 2019, which is after the visa application date.

17. The decision record shows that the delegate relied on the applicant’s Statement of Academic Record from ECU which states that the applicant’s course was completed on 12 December 2019, being the same date as the conferring of the Ph D. On this basis, the delegate was not satisfied that the applicant met the Australian study requirements as the completion date was after the date the visa application was made.

18. However, as noted above, the term ‘completed’ in relation to the relevant qualification for the purposes of cl 485.231 is defined in reg 1.15F(2) as ‘having met the academic requirements for its award’.

19. Since she made her review application, the applicant has provided the Tribunal with documents and verbal evidence at the hearing to indicate that she had completed the academic requirements for the award of the Ph D prior to the date that she made the visa application.

20. As the applicant explained at the hearing, the study for a Ph D and its subsequent award is different from coursework study for bachelor or master’s degrees. She also explained at the hearing that after the academic requirements for the award of a Ph D are completed, the university would need to complete a number of administrative steps, unrelated to the academic requirements, which would explain why the course completion date on the statement of academic record is recorded as 12 December 2019.

21. The applicant has submitted to the Tribunal that she met the academic requirements for the award of her Ph D either on 4 December 2019 when she lodged her amended thesis or on 5 December when the university sent her an email acknowledging receipt of the amended thesis.

22. The applicant has provided a timeline, together with verifying documents including emails from ECU, highlighting that she originally submitted her Ph D thesis for grading or assessment on 30 August 2019. She explained at the hearing that this thesis was then sent to independent examiners outside the university who assessed it. The independent examiners’ report, as communicated to the applicant by email on 24 October 2019, indicated that the thesis outcome was ‘Passed, with minor amendments required to the satisfaction of the principal supervisors’.

23. At the hearing, the applicant outlined that after she received this examiners’ report on 24 October 2019, she liaised with her co-supervisors and together they discussed and agreed to the necessary changes, some of which had been suggested by the independent examiners and some additional changes made on the advice of her supervisors. Once the changes were agreed to by the applicant and her supervisors, the applicant made the changes and re-submitted the amended thesis on 4 December 2019. As the applicant clearly articulated at the hearing, the amended thesis submitted on 4 December 2019 did not need to be examined any further as it already contained the minor amendments to the satisfaction of her supervisors that had been originally requested by the independent examiners. There was no further grading or marking process involved and on submission of the amended thesis she believed she had met the academic requirements for the award of the Ph D, which is why she proceeded to submit her visa application.

24. The applicant’s version of events is supported by the letter dated 18 March 2020 from her academic supervisors at ECU. The supervisors state clearly in this letter that the applicant’s course was technically over on 4 December 2019 when she submitted her amended Ph D thesis to ECU ‘as she had nothing more to do and the amendments were to our satisfaction’. The Tribunal has placed significant weight on this letter, which was not submitted to the Department, when determining the date on which the applicant met the academic requirements for the award of the Ph D.

25. Having considered the evidence before it, the Tribunal is prepared to accept that the date of 12 December 2019 that is recorded on the applicant’s statement of academic record is a completion date for administrative purposes rather than the date the applicant completed the academic requirements for the award of the Ph D. On the evidence before it, including the clear evidence in the letter from the applicant’s academic supervisors, the Tribunal accepts that the applicant met the academic requirements for the award of the Ph D on 4 December 2019, being the date that she submitted her amended thesis containing the amendments required to the satisfaction of her principal supervisors.

26. Therefore, on the evidence before it, the Tribunal is satisfied, pursuant to reg 1.15F(2), that the applicant met the academic requirements for the award of her relevant qualifications on 4 December 2019.

27. As 4 December 2019 is within the 6-month period immediately before the application was made, the Tribunal is satisfied that the applicant completed her relevant degree in the 6 months immediately before the application was made on 9 December 2019.

28. The Doctor of Philosophy course at ECU is a registered course as defined in reg 1.03. The applicant undertook her studies from 2015 to 2019, which is more than 16 calendar months, and was the result of at least 2 academic years of study. All instruction was conducted in English and the applicant was the holder of a valid Australian student visa at all relevant times.

29. Based on the evidence before it, the Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

31. 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

32. 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.

    Peter Katsambanis
    Member