Wang (Migration)

[2020] AATA 1553

Wang (Migration) [2020] AATA 1553 (17 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haoyu Wang

CASE NUMBER:  1904810

HOME AFFAIRS REFERENCE(S):          BCC2018/3692194

MEMBER:R. Skaros

DATE:17 February 2020

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 17 February 2020 at 9:33am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – two academic years of relevant study – specified qualification – two distinct qualifications completed concurrently – decision under review remitted       

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231; r 1.15

CASES

Riaz v MIBP [2013] FCCA 2244

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 12 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 28 September 2018. 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 completed at least 2 academic years of study for the purpose of meeting the Australian study requirement as the applicant had not supplied evidence of the coursework being completed in the last 6 months ending immediately before the day the application was made.

4. The applicant provided a copy of the delegate’s decision record with the application for review.

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

6. In response to a request for further information regarding his studies in Australia, the Tribunal received submissions and supporting documents, to which it has had regard further below.

7. The Tribunal did not consider it necessary to have a hearing in this case as it was able to make a favourable decision on the evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. 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 Master of Professional Accounting and Master of Business Administration which are qualifications specified in that instrument.  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 IMMI 13/031.

12. In this case, the applicant’s qualification was conferred or awarded by Holmes Institute, which is registered on the CRICOS and offers courses at degree level or above. It is therefore an educational institution specified in the relevant instrument. Accordingly, cl.485.231(2) is met..

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

13. 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.

14. 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.

15. ‘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: LIN 19/085. For the purposes of this definition, as long as a course is registered under the ESOS Act as having a duration of 92 weeks, and an applicant has ‘completed’ that course, r.1.15F(1)(c) will be satisfied, regardless of whether completion of the course involved benefit from credits, recognition of prior learning or the like.[1] The Court’s reasoning in Riaz v MIBP suggests that this will be the case even if the prior study was not undertaken in Australia. The Court held that ‘study’ in r.1.15(1)(c) denotes the activities educational institutions prescribe for the award of a degree, diploma or trade qualification and it is for those institutions to specify what is required for a person to complete a course that will result in the conferral of a relevant qualification, including the recognition of prior learning and course credits. Accordingly, the relevant question for r.1.15F(1)(c) is whether an applicant for the visa had ‘completed’, as defined in r.1.15F(2), a course or courses that had been registered under the ESOS Act as having a duration of at least 92 weeks.[2]

    [1] See Riaz v MIBP [2013] FCCA 2244 (Manousaridis J, 20 December 2013).

    [2] Riaz v MIBP [2013] FCCA 2244 (Manousardis J, 20 December 2013) at [41] & [50].

16. The applicant stated on the application form that he completed a Master of Business Administration (MBA) and a Master of Professional Accounting (MPA) between March 2016 and March 2018 at Holmes Institute. The applicant included with his application a letter of completion and an academic transcript for these qualifications.

17. The delegate found that the applicant had not completed at least 2 academic years of study for the purpose of meeting the Australian study requirement as the applicant had not supplied evidence of the coursework being completed in the last 6 months ending immediately before the day the application was made.

18. The Tribunal is mindful that the 2 year study requirement can be met by completing more than one qualification. In this case, the applicant completed two distinct qualifications, a Master of Professional Accounting and a Master of Business Administration. The two qualifications were separately registered on CRICOS as each being of 78 weeks duration.

19. The Tribunal has had regard to the document issued by Holmes Institute and provided to the Department on 18 December 2018, advising in writing:

    Students do not always complete their two degrees consecutively as per the prescribed study plan and may undertake an irregular enrolment undertaking subjects from both degrees resulting in the same completion date. However, the student will have met the requirement for both awards having completed 16 subjects and studied in excess of the 92 CRICOS weeks required

20. As the two qualifications were registered separately on CRICOS, and can be completed independently, the Tribunal is satisfied that the two qualifications can each contribute towards the 2 year study requirement.

21. The Tribunal finds that the two courses were registered courses. The letter of completion indicates that they were completed between March 2016 and March 2018 and the Tribunal is satisfied they were completed in a total of at least 16 calendar months. The fact that the applicant was able to complete part of the two courses concurrently indicates that at least some of the subjects were credited towards both courses and his academic transcript shows that the applicant completed the same subjects to obtain the two qualifications, and was granted recognition of prior learning for other study. However, as long as the two courses are registered as being a total of 92 weeks duration, and were completed or met the academic requirements for award of the degrees, recognition of prior learning or credits granted are a matter for the education provider in deciding what is required for a person to complete a course for conferral of the qualification/s (Riaz v MIBP [2013] FCCA 224). Thus, the Tribunal finds that the two courses were completed as a result of at least 92 weeks and 2 academic years of study.

22. The letter of completion confirms that the programs were delivered in English. The Tribunal is satisfied that the applicant undertook study while in Australia as the holder of a visa authorising him to study. The Tribunal finds that the applicant met the Australian study requirement in r. 1.15F.

23. The applicant completed his courses on 30 March 2018. He made the application on 28 September 2019. The Tribunal is satisfied the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made. The Tribunal finds that the applicant meets cl. 485.231(3).

    CONCLUSION

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.

    R. Skaros
    Senior Member