LIU (Migration)

[2017] AATA 318

LIU (Migration) [2017] AATA 318 (28 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yu Liu

CASE NUMBER:  1610157

DIBP REFERENCE(S):  BCC2016/1129952

MEMBER:Katie Malyon

DATE:28 February 2017

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.485.221 of Schedule 2 to the Regulations; and,

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 28 February 2017 at 1:29 pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Graduate Work stream – Hearing not required – Accountant (General) – Master of Commerce – Completion Letter and Transcript of Academic Record – Qualification closely related to nominated position

LEGISLATION
Education Services for Overseas Students Act 2000, s 9

Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 485.111, cl 485.221, cl 485.222, r 1.03, r 1.15F, r 2.26AC(6)

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 23 June 2016 to refuse to grant the applicant, Miss Yu Liu, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Liu applied for the visa on 15 March 2016. Visa Class VC contains Subclass 485. For visa applications made before 1 July 2013, there is also a Subclass 487: however, that subclass is not relevant to the present matter. 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).  

3. The delegate refused to grant the visa because Miss Liu did not satisfy cl.485.221 of Schedule 2 to the Regulations. This relates to the ‘Australian study requirement’ set out in r.1.15F of the Regulations. The delegate noted that the Australian study requirement required, amongst other things, that the applicant must have completed an Australian qualification of a specified level in the 6 months immediately before making the visa application. Although Miss Liu indicated in her Subclass 485 visa application that she met the Australian study requirement in the 6 months before making her application on 15 March 2016 and, furthermore, although she stated that she had completed a Master of Commerce at the Australian National University (ANU) on 3 December 2015 she nonetheless did not provide the delegate with any evidence of completing her degree when requested to do so.  As a result, her application was refused.  A copy of the delegate’s decision was provided to the Tribunal.

4. The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers pursuant to s.360(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Miss Liu is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 and cl.485.222 of Schedule 2 to the Regulations. These require that the applicant has satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, 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). The issue in the present case is whether Miss Liu meets those requirements.

   Does the applicant meet the Australian study 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:

   (a)  that are registered courses; and,

   (b)  that were completed in a total of at least 16 calendar months; and,

   (c)  that were completed as a result of a total of at least 2 academic years study; and,

   (d)  for which all instruction was conducted in English; and,

   (e)  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) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. The term ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award: r.1.15F(2) of the Regulations. 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.

8. Accompanying her application for review to the Tribunal, Miss Liu provided a number of documents including, relevantly:

   ·a Transcript of Academic Record from ANU confirming Miss Liu was awarded a Bachelor of Actuarial Studies majoring in Quantitative Finance on 12 December 2012 and a Master of Commerce with Merit on 17 December 2015.  It also notes that she was enrolled in a Master of Financial Management in Semester 2 of 2013 during which time she completed 3 subjects which were credited towards her Master of Commerce when she discontinued her Master of Financial Management course.  Miss Liu’s last subject for her Master of Commerce course was a thesis;

   ·the Degree Certificate for Master of Commerce with Merit awarded to Miss Liu dated 17 December 2015; and,

   ·a completion letter from ANU’s Registrar of Student Administration dated 1 July 2016 confirming Miss Liu has successfully completed the requirements for the award of Master of Commerce degree and, further, that she commenced the program on 17 February 2014 and completed the program on 4 December 2015 (the Completion Letter).  The Completion Letter states that the program was solely conducted and examined in English.

9. In a letter accompanying in her application for review to the Tribunal, Miss Liu apologised for not responding to the Department’s request that she provide evidence of completion of her Master of Commerce degree at ANU.  She explained she had the necessary documentation from ANU but had lodged it with the Chartered Accountants Australia and New Zealand (Chartered Accountants ANZ) for assessment of her skills as an Accountant (General) ANZSCO 221111.  She said she was planning to lodge ‘everything together’ with the Department, including her skills assessment from Chartered Accountants ANZ.

10. The Department’s Movement Records in relation to Miss Liu confirm that she has held 3 Subclass 573 Student visas since arriving in Australia to study.  She was granted her most recent Subclass 573 Student visa on 12 November 2014 (that is, 9 months after she started her Master of Commerce degree) and it ceased on 15 March 2016.  Prior to this, she held a Subclass 573 Student visa granted 20 November 2013 and which ceased on 30 September 2014.  For just over 6 weeks and before grant of her most recent Student visa, Miss Liu held a Bridging visa which, although it carried visa condition 8101 (no work), it carried no condition precluding or limiting her ability to study and so she was able to continue her postgraduate studies consistent with the provisions of her visa.  Between undertaking her Bachelor of Actuarial Studies and commencing her Master of Financial Management she also held 2 other Bridging visas which did not carry any condition precluding or limiting her ability to study.

11. Miss Liu has provided evidence from ANU that she has been given credit for 3 subjects which she undertook in Semester 2 of 2013 when she was enrolled in the Master of Financial Management and that these same subjects are also courses within the Master of Commerce degree.  As noted above, Miss Liu’s Transcript of Academic Record from ANU confirms recognition of these 3 subjects for her Master of Commerce course.  The Tribunal accepts that Miss Liu received credit for the 3 subjects that she undertook in Semester 2 of 2013 for her Master of Financial Management (which she discontinued) and the Tribunal is of the view that this semester should be included as part of the ‘academic year’ study for Miss Liu’s Master of Commerce course.

12. The Tribunal has independently reviewed the CRICOS Register for ANU’s Master of Commerce course code 050803F, the course which both Miss Liu’s Academic Transcript and ANU’s Completion Letter confirm she was enrolled in.  The CRICOS registration indicates that the duration of the Master of Commerce course is 2 years (that is, 104 weeks).[1] Based on the evidence before it, including the Completion Letter, the Transcript of Academic Record and CRICOS extract evidencing that the registered duration of ANU’s Master of Commerce course which Miss Liu completed was 104 weeks, the Tribunal is satisfied that she meets the requirements of r.1.15F(1)(a) and r.1.15F(1)(c) of the Regulations.

    [1] Australian National University, Postgraduate Coursework Programs, 2017, p.22 >

    Based on the Completion Letter and Transcript of Academic Record, the Tribunal is satisfied that Miss Liu’s course was completed in a total of more than 16 calendar months. Accordingly, she meets 1.15F(1)(b) of the Regulations.

13. The Tribunal is satisfied, based on the Completion Letter, that all instruction for the Master of Commerce course at ANU was conducted in English. Miss Liu therefore satisfies 1.15F(1)(d) of the Regulations.

14. Miss Liu’s Movement Records confirm that she was the holder of a visa authorising her to study while undertaking her courses at ANU. Accordingly, she meets 1.15F(1)(e) of the Regulations:

15. Based on the Completion Letter, the Tribunal finds that Miss Liu completed the requirements for the award of Master of Commerce on 4 December 2015 and, therefore, the Tribunal finds that she satisfies the ‘Australian study requirement’ set out in r.1.15F of the Regulations on this date. This is within 6 months immediately before the date of her Subclass 485 visa application on 15 March 2016. Therefore, she meets cl.485.221 of Schedule 2 to the Regulations.

    Is the qualification ‘closely related’ to the nominated occupation?

16. Clause.485.222 of Schedule 2 to the Regulations requires the qualification used to satisfy the requirement in cl.485.221 must be ‘closely related’ to the applicant’s nominated skilled occupation. The term ‘skilled occupation’ has the meaning given by r.1.15I of the Regulations. A skilled occupation in relation to a person means an occupation of a kind:

    (a)  that is specified by the Minister in an instrument in writing to be a skilled occupation; and,

    (b)  if a number of points are specified in the instrument as being available - for which the number of points are available; and;

    (c)  that is applicable to the person in accordance with the specification of the occupation

17. In this case, Miss Liu nominated the occupation of Accountant (General) ANZSCO 221111 which is a skilled occupation specified in IMMI 16/060.

18. Miss Liu provided the Tribunal with a copy of a positive skills assessment issued to her by Chartered Accountants ANZ on 7 July 2016 and which expressly recognises her Bachelor of Actuarial Studies as well as her Master of Commerce, both of which courses were undertaken at ANU. The letter from Chartered Accountants ANZ acknowledges receipt of her application for skills assessment on 14 March 2016 and receipt of additional information on 1 July 2016. It states that her qualifications were assessed as suitable for migration to Australia under her nominated occupation of Accountant (General) 221111 and, further, that the highest qualification assessed was her Master of Commerce. In the circumstances, the Tribunal finds that the qualification used by Miss Liu to meet the Australian study requirement discussed above (that is, her Master of Commerce) is closely related to her nominated skilled occupation. Accordingly, she meets cl.485.222 of Schedule 2 to the Regulations.

19. On the basis of the above findings, the Tribunal finds that Miss Liu meets the requirements of cl.485.221 and 485.222 of Schedule 2 to the Regulations. In the circumstances, 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 criterion for a subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations; and

    ·cl.485.222 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member