Lu (Migration)

[2021] AATA 3030

Lu (Migration) [2021] AATA 3030 (5 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shuyi Lu

CASE NUMBER:  1905098

HOME AFFAIRS REFERENCE(S):          BCC2018/6024990

MEMBER:Mary Sheargold

DATE:5 August 2021

PLACE OF DECISION:  Melbourne

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 05 August 2021 at 3:39pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – eligible Australian qualification – degree not completed in the 6 months before the application – status of postgraduate diploma – 2 academic years of study – decision under review remitted           

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; rr 1.03, 1.15, 2.26

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 February 2019 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 8 January 2019. 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. 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 found that the applicant’s Graduate Diploma in Education (Early Childhood) was not an eligible Australian qualification for the purposes of the grant of a Subclass 485 visa, and that her Bachelor of International Business degree had not been completed in the 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 4 August 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and cl.485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before 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 the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

8. 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.

9. ‘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 (Cth): LIN 19/085.

10. The applicant applied for the visa on 8 January 2019.  The applicant has provided evidence to the Tribunal demonstrating that she completed a Graduate Diploma in Education (Early Childhood) with Distinction at RMIT University on 9 July 2018, as well as evidence that she completed a Bachelor of International Business degree at La Trobe University on 4 February 2013.  Based on the evidence before it, the Tribunal is satisfied that the applicant’s graduate diploma was completed in the 6 months immediately before the day this application was made.

11. The delegate found that the first named applicant’s Graduate Diploma in Education (Early Childhood) did not constitute a ‘degree’ or ‘diploma’ as defined in r.2.26AC(6) of the Regulations.  The Tribunal notes that this finding is not correct.  The definition of ‘degree’ in r.2.26AC(6) clearly states that “degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which the entry level to the course leading to the qualifications is…(iv) in the case of a postgraduate diploma – satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award” (emphasis added).  The Tribunal notes the first named applicant completed a Bachelor of International Business at La Trobe University on 4 February 2013.  Therefore, her Graduate Diploma in Education (Early Childhood) meets the definition of “degree” in r.2.26AC(6) of the Regulations.

12. The Tribunal is satisfied that both the Graduate Diploma in Education (Early Childhood) and the Bachelor of International Business are registered courses, being courses of education provided by institutions that are registered under Division 3, Part 2 of the Education Services for Overseas Students Act 2000 (Cth) to provide the course to overseas students. Therefore, r.1.15F(1)(a) is met.

13. Paragraph 1.15F(1)(b) of the Regulations requires that the courses to be relied upon to satisfy the Australian study requirement were completed in a total of at least 16 calendar months.  The applicant’s graduate diploma was undertaken from 17 July 2017 to 9 July 2018, a total of 12 months.  The Bachelor of International Business was undertaken from 26 July 2010 to 4 February 2013, being a period of 31 months.  The total time take to complete the courses was 43 calendar months.  Therefore, the courses were completed in a total of at least 16 calendar months, and the requirement in r.1.15F(1)(b) is met.

14. The evidence before the Tribunal is that the Graduate Diploma in Business course length was 52 weeks, and the Bachelor of Information Technology course length was 156 weeks.  Therefore, the first named applicant has completed at least 2 academic years of study, and the Tribunal is satisfied that the course language for both qualifications was English.  Accordingly, the Tribunal is satisfied that the requirements in rr.1.15F(1)(c) and (d) are met.

15. Based on Departmental records, the Tribunal is satisfied that the first named applicant held visas authorising her to study whilst undertaking her qualifications.  Therefore, r.1.15F(1)(e) is met.

16. Based on all the evidence before it, the Tribunal finds that the first named applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the first named applicant meets cl.485.221.

17. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. 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

    Mary Sheargold
    Member