SHEN (Migration)

[2017] AATA 2108

SHEN (Migration) [2017] AATA 2108 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kaicheng SHEN

CASE NUMBER:  1706527

DIBP REFERENCE(S):  BCC2017/160298

MEMBER:Wan Shum

DATE:26 October 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

Statement made on 26 October 2017 at 11:29am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement satisfied in period 6 months before application made

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, 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 Immigration on 13 March 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 January 2017. 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 the applicant did not satisfy the Australian study requirement in cl.485.221 of Schedule 2 to the Regulations.

4. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant appeared before the Tribunal on 5 October 2017 to give evidence and present arguments.

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. This includes a requirement that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221).

   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, ‘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).

10. The applicant indicated on the visa application form that he had completed the following study in Australia: Bachelor of Commerce at Deakin University from 24 February 2014 to 7 July 2016.

11. The applicant provided a letter to Immigration from Deakin University dated 27 October 2016 in relation to his studies which relevantly states that the applicant completed his studies on 7 July 2016. A copy of the academic transcript provided by the applicant also states “course requirements completed on 07/07/2016”.

12. This date is more than 6 months before the day on which the application was made.

13. On review, a letter from the Student Central area of Deakin University was submitted which advised that the applicant had sat a supplementary exam on 27 July 2016, and the result for that subject was “keyed in our system” on 2 August 2016. It states that the system generated date for course completion was 7 July 2016, and that this cannot be changed.

14. At the hearing, the Tribunal referred to the completion letter and academic transcript from the university which indicated that the course completion date was 7 July 2016. The Tribunal noted the additional letter provided and the applicant confirmed that he sat a supplementary exam for the International Finance and Investment subject. He said he had failed the first exam having achieved 44%. He requested a supplementary exam and the university agreed as it was his last trimester and final subject. The Tribunal indicated it would be seeking further clarification from the education provider as to when he was considered to have met the requirements for the award of the Bachelor degree.

15. Following the hearing, the Tribunal contacted the education provider and received confirmation of the applicant’s claims from the Manager of the International Quality and Compliance unit. The manager further confirmed that the applicant’s enrolment status was changed to completed for the course on 15 August 2016.

16. Based on this additional information, the Tribunal accepts that the applicant was found by the education provider to have met the course requirements on 15 August 2016.

17. On the material before it, the Tribunal finds that the applicant commenced the course on 24 February 2014 and completed the course on 15 August 2016. This is a period which exceeds 16 calendar months. It further finds that the applicant completed the Bachelor of Commerce, and that this course is a registered course, being a course of education provided by an institution that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. The PRISMS records indicate that the applicant had undertaken a Diploma of Commerce prior to commencing the Bachelor course.

18. Having regard to the PRISMS records, the Tribunal is satisfied that at the time he undertook the study, the applicant’s course was registered for 156 weeks which is at least 2 academic years as specified. The Tribunal is also satisfied the courses were conducted in English.  The applicant’s movement records confirm he held student and bridging A visas throughout this period. He was therefore authorised to study in Australia while undertaking the course.

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

20. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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.

    Wan Shum
    Member