NGUYEN (Migration)

[2019] AATA 2319

NGUYEN (Migration) [2019] AATA 2319 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hoang Ha NGUYEN

CASE NUMBER:  1725884

HOME AFFAIRS REFERENCE(S):           BCC2017/3042645

MEMBER:Jennifer Cripps Watts

DATE:25 March 2019

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 25 March 2019 at 9:13am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course duration – delegate relied on incorrect CRICOS code – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 (the delegate) on 5 October 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 23 August 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 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had a qualification completed as a result of a total of at least 2 academic years’ study.

4. The applicant was invited to attend a hearing.  Referring to information contained in pre-hearing written submissions, with attached documents, and having regard to relevant information already on the file, the Tribunal is satisfied that the applicant meets the study requirements as required by cl.485.231.  On this basis, it was possible to make a favourable decision for the applicant.  A hearing was not necessary and a decision was made on the papers.

5. The applicant was represented in relation to the review by her registered migration agent, Mr Karl Konrad, Migration Agent Registration Number 9904238.

6. 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. 

7. The applicant provided the Department and the Tribunal with a letter of completion dated 4 July 2017 signed by Angelo Kourtis, Vice-President and Registrar Western Sydney University.  In the letter it is stated that the applicant, Thi Hoang Ha Nguyen, holds a Master of Arts in TESOL from Western Sydney University, CRICOS Code 092787J, she commenced study on 20 July 2015, instruction was in English, she met all course requirements and the course was completed on 2 July 2017. 

   Does the applicant hold a specified qualification?

8. 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, which specifies the following qualifications:

   (a)Bachelor Degree;

   (b)Bachelor (Honours) Degree;

   (c)Masters by Coursework Degree;

   (d)Masters by Research Degree;

   (e)Masters (Extended) Degree and/or;

   (f)Doctoral Degree.

9. In this case, the applicant holds a Masters Degree which is a qualification specified in that instrument.

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

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

11. 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 13/031, which specifies for the purposes of cl.485.231(2) that Australian universities and non-university education providers are eligible educational institutions if they are registered on the CRICOS and offer courses at degree level and above.

12. The Tribunal has confirmed that Western Sydney University is a CRICOS registered provider:  CRICOS Code 00917K.

13. In this case, the Tribunal is satisfied the applicant’s qualification was conferred or awarded by an educational institution specified in the relevant instrument.

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

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

15. 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.

16. 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.

17. Mr Konrad provided written submissions, dated 21 March 2019, attaching documents and information for consideration by the Tribunal.  It is submitted that the applicant does meet the criteria for the grant of the visa because, essentially, the wrong CRICOS code was relied on by the delegate reaching the decision to refuse the applicant’s visa.

18. The Tribunal’s view, having considered all relevant information, is that the basis of the refusal of the visa,  being that the applicant’s qualification was of 52 and not 104 weeks’ duration and that she did not therefore meet the study requirement, was incorrect. 

19. The Tribunal has had regard to the letter of completion from Western Sydney University, stating that the applicant completed the course with CRICOS Code 092787J on 2 July 2017.  The Tribunal has verified that the applicant’s qualification, a Master of Arts in TESOL at Western Sydney University, is CRICOS Code 092787J and is satisfied that it is a course of 104 week’s duration, which is more than the required 92 weeks.  

20. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). 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.

21. The visa application was made on 23 August 2017.  The Tribunal is satisfied that the applicant’s Master of Arts in TESOL from Western Sydney University was completed on 2 July 2017, which is in the 6 months immediately before the application was made.  The Tribunal is satisfied, on the evidence, and for the reasons given above, that the specified qualification was as a result of a course that was a registered course, that the study was undertaken in a total of at least 16 calendar months, as a result of at least 2 academic years (as specified) study, for which all instruction was conducted in English and that the course was completed while the applicant held a visa authorising study.

22. 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.

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

24. 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

25. 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