Levin (Migration)

[2018] AATA 4289

Levin (Migration) [2018] AATA 4289 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Rachel Ashley Levin

CASE NUMBER:  1717256

HOME AFFAIRS REFERENCE(S):           BCC2017/2207958

MEMBER:Jennifer Cripps Watts

DATE:14 September 2018

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 criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 14 September 2018 at 4:28pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa –Subclass 485 (Temporary Graduate) – ‘Australian study requirement’ – study for a Doctoral Degree – 6 months preceding date of the visa application – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Immigration and Border Protection on 25 July 2017 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 June 2017. 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 the applicant did not satisfy cl.485.231(3) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed her study in the 6 months prior to lodging the application, which was lodged on 22 June 2017.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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?

5. 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 Doctoral degree (PhD) which is  a qualification specified in that instrument.

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

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

7. 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.

8. In this case, the applicant’s qualification was conferred or awarded by the University of New South Wales which is an educational institution specified in that instrument.

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

   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 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.

12. The applicant undertook study for a Doctoral Degree PhD Biology at the University of New South Wales, from 29 July 2013 to 21 June 2017. On the evidence, the Tribunal is satisfied that the applicant satisfies the criteria in r.1.15F(1) of the Regulations.

13. The Tribunal accepts on the evidence before it, in the form of a letter from the University of New South Wales dated 14 September 2018, that the date of completion for the applicant’s course was 19 June 2017.  The application for the visa that is the subject of this review was lodged on 22 June 2017.

14. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

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

16. 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

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.

    Jennifer Cripps Watts
    Member