Johnson (Migration)

[2018] AATA 1576

Johnson (Migration) [2018] AATA 1576 (27 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Johnson

CASE NUMBER:  1710521

DIBP REFERENCE(S):  BCC2017/1564087

MEMBER:Kate Millar

DATE:27 March 2018

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.485.221.

Statement made on 27 March 2018 at 4:46pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant satisfies the study requirement of 92 weeks – Information not before the delegate – Applicant collectively satisfies study requirements – Decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F, 2.26AC(6), Schedule 2, cls 485.211, 485.221

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 on 11 May 2017 to refuse to grant the Mr Johnson a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Johnson for the visa on 1 May 2017. Visa Class VC contains Subclass 485. 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), and Mr Johnson must meet the primary criteria to be granted this visa. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that Mr Johnson met the Australian study requirement in the period of 6 months immediately before the day the application was made. This was because the length of the Masters of Professional Accounting undertaken by Mr Johnson was less than the length of a course specified by the Minister as meeting the Australian study requirements.

3. Mr Johnson appeared before the Tribunal on 14 March 2018 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Mr Johnson is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 of Schedule 2 to the Regulations. This requires that:

   The applicant satisfied the Australian study requirement in the period 6 months immediately before the day the application was made.

   Does the applicant meet the Australian study requirement?

5. 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; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·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.

6. ‘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, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (IMMI 09/040).  An “Australian educational institution” is specified in IMMI 13/031 as including non-university education provider registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offer courses at degree level and above. 

7. The Masters of Professional Accounting undertaken by Mr Johnson was for a period of 78 weeks and does not meet the requirement to have been completed as a result of at least 2 academic years study.  This course was conferred 18 April 2017, and Mr Johnson completed the requirements for the conferral of this qualification on 16 March 2017.  

8. The Australian study requirement does not require that a single course is undertaken as it refers to one or more courses degrees, diplomas or trade qualifications. 

9. Mr Johnson has also completed a Bachelor of Science that the delegate was unaware of at the time the delegate made the decision.  Mr Johnson has provided an academic transcript showing a Bachelor of Science (Biotechnology) was awarded 31 July 2015.   

10. In looking at the requirements, he has:

    ·     Completed a Bachelor of Science (Biotechnology) and a Masters in Professional Accounting, with the Masters being completed in the six months immediately before the day the application was made. 

    ·     The courses were completed in a total of over 16 calendar months. 

    ·     The Bachelor of Science was an award by an Australian educational institution at the University of Adelaide.  The Masters of Professional Accounting was completed at Kaplan Business School Pty Ltd which is registered on CRICOS and offers courses at degree level and above. 

    ·     As a result of a course that is a registered course; the Bachelor of Science has CRICOS course code 031007C, and the Master of Professional Accounting has a CRICOS course code 063297A.

    ·     That was completed as a result of at least 2 academic years study, which is 92 weeks.  In this case the duration of the Bachelor of Science is 156 weeks and the Masters of Professional Accounting is 72 weeks.

    ·     For which all of the instruction was conducted in English; and

    ·     Mr Johnson has been the holder of a Student (subclass 573) visa from the time he arrived in Australia until after the date he completed both courses. 

11. As a result, I am satisfied Mr Johnson meets the Australian study requirement.

12. The most recently completed qualification is the Masters of Professional Accounting, which was completed in the period 6 months immediately before the day the application was made.

13. As Mr Johnson satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application he meets cl.485.221.

14. As this is the basis on which the visa was refused, I will remit this matter to the Department to consider the remaining criteria for the grant of the visa.

15. The delegate did not address the requirement that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222).

16. While there could be real doubt as to whether Mr Johnson’s Bachelor of Science is closely related to the nominated occupation of accountant, this has not been considered by a delegate of the Minister.  Mr Johnson was advised at hearing he could expect that a delegate would closely consider whether this was the case on considering the remaining criteria for the grant of a 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.485.221.

    Kate Millar
    Member