Khan (Migration)

[2021] AATA 941

Khan (Migration) [2021] AATA 941 (26 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naseer Ahmad Khan

CASE NUMBER:  1820705

HOME AFFAIRS REFERENCE(S):          BCC2018/3734762

MEMBER:Kira Raif

DATE:26 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

Statement made on 26 March 2021 at 11:19am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – graduate diploma as eligible qualification – course entry requirements – relevant graduate diploma course required successful completion of diploma – “graduate diploma” and “postgraduate diploma” – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F(1), 2.26AC(6)(a)(iv), Schedule 2, cl 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 Home Affairs on 27 June 2018 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 13 June 2018. The delegate was not satisfied the evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement as required by cl.485.221.

3. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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)..

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 which requires that the applicant 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 this requirement.

6. 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.

7. ‘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.

   Does the applicant meet the Australian study requirement?

8. In this case, the evidence before the Tribunal indicates that the applicant completed the following courses:

   ·Diploma of Marketing at Cambridge International College between 28 July 2014 and 15 February 2015;

   ·Bachelor of Business (Accounting) at Cambridge International College between 23 March 2015 and 26 December 2016; and 

   ·Graduate Diploma of Management (Learning) from the Australian School of Commerce between 14 April 2017 and 2 June 2018

9. The delegate determined a graduate diploma was not an eligible qualification for the purpose of satisfying the Australian Study Requirement and was not satisfied that the applicant met the requirements of cl.485.221.

10. The applicant has provided copies of letters of completion issued by the education providers for the above courses. As noted above, the delegate found that the ‘graduate diploma’ was not an eligible degree, diploma, or trade qualification as required by r.2.26AC(6), as such the Tribunal must consider these terms as set out in the relevant legislation.

11. Relevantly, the term ‘degree’ is defined in r.2.26AC(6) as a formal educational qualification, under the Australian Qualifications Framework (AQF), awarded by an Australian educational institution as a ‘degree’ or a ‘postgraduate diploma’. In the case of a ‘postgraduate diploma’ r.2.26AC(6)(a)(iv) also requires that the entry level to the course was the satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award.

12. The term ‘diploma’ is defined in r.2.26AC(6) as either: an ‘associate diploma’ or ‘diploma’ within the meaning of the Register of Australian Tertiary Education, awarded by a relevant body; or a ‘diploma’, or an ‘advanced diploma’, under the AQF, that is awarded by a relevant body.

13. The Register of Australian Tertiary Education refers to the education levels set out in the AQF. The Tribunal notes that the AQF lists a ‘diploma’ as level 5, an ‘advanced diploma’ at level 6, a ‘bachelor's degree’ at level 7, and a 'graduate diploma' at level 8.

14. The Tribunal has had regard to the entry requirements for the Graduate Diploma of Management (Learning) at the Australian School of Commerce and notes that it requires an entrant to have successfully completed a Diploma level qualification. On this basis, the Tribunal considers that the applicant's course is not the same as a ‘diploma’ but rather is a course that is attained after having completed a diploma. As such, and noting that the ‘graduate diploma’ is listed on the AQF at level 8, the Tribunal find that: the applicant’s Graduate Diploma aligns with that of a ‘postgraduate diploma’; the course falls within the definition of ‘degree’ within r.2.26AC(6); and that it is an eligible degree for the purpose of satisfying the Australian Study Requirements in r.1.15F.

15. Further, as a ‘Bachelor degree’ is specified as a ‘degree’ in r.2.26AC(6), the applicant’s bachelor of Business (Accounting) also falls with the definition of 'degree' and meets the requirement in r.1.15F. The applicant’s Diploma of Marketing is a ‘diploma’ course within the meaning of r.2.26A(6).

16. Additional evidence before the Tribunal confirms that the applicant’s Diploma of Marketing was registered as requiring 26 academic weeks of study and was undertaken over a period of 6 months. The Bachelor of Business (Accounting) was registered on CRICOS as requiring 156 academic weeks of study and was undertaken over a period of over 21 months, and the Graduate Diploma was registered on CRICOS as requiring 52 academic weeks of study and was undertaken over a period of over 13 months. Each of the applicant’s courses were conducted in English and were undertaken in Australia while the applicant held relevant student visas permitting him to undertake the relevant study.

17. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

    ·Two of the applicant's courses were degrees within the meaning of r.2.26AC(6), and one was a diploma within the meaning of that provision. The Graduate Diploma was completed in the 6 months immediately before the application was made;

    ·the courses were CRICOS registered courses:

    ·the courses were completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the courses were conducted in Australia while the applicant held student visas authorising study in Australia.

18. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant meets cl.485.221.

19. On the basis of the above findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    Kira Raif

    Senior Member