WEN (Migration)

[2018] AATA 1448

WEN (Migration) [2018] AATA 1448 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JIANHAO WEN

CASE NUMBER:  1729653

DIBP REFERENCE(S):  BCC2017/3335355

MEMBER:Susan Trotter

DATE:9 May 2018

PLACE OF DECISION:  Brisbane

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 09 May 2018 at 5:24pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work Stream – Whether the applicant satisfies the ‘Australian study requirements’ – Graduate Diploma of marketing – Master’s degree satisfied the prerequisite requirements – Eligible qualification – Completed 6 months immediately before the day of the visa application – remit the visa application to the Minister

LEGISLATION
Education Services for Overseas Students Act 2000 s9
Migration Regulations 1994, ss 65, 360
Migration Regulations 1994 rr 1.03, 1.15F, 2.26AC Schedule 2 cls 010.611(4)(a)(i) , 485.111, 485.221 Schedule 8 Condition 8105

CASES
Venkatesan v MIAC [2008] FMCA 409
Sapkota v MIAC [2012] FCA 981

Bhatt v MIAC [2012] FCA 918

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 Minister) on 7 November 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 13 September 2017. Visa Class VC contains Subclass 485. 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 on the basis that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the Graduate Diploma of Marketing completed by the applicant, although completed within the required time frame, was not an eligible qualification and the Master of Commerce (Professional Accounting) completed by the applicant, although an eligible qualification, was not completed within the required time frame.

4. The applicant applied to the Tribunal on 27 November 2017 seeking review of the delegate’s decision.

5. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal.

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

   ISSUES

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which includes cl.485.221 of Schedule 2 to the Regulations, relying on completion of a number of qualifications in Australia. Clause 485.221 requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the visa application was made.

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 one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:

   (a)  are registered courses; and

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

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

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

   (e)  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). 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.

10. Regulation 2.26AC(6) provides as follows:

    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:

    (a)  the entry level to the course leading to the qualification is:

    (i)   in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    (ii)   in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    (iii)  in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    (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; and

    (b)  in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

    diploma means:

    (a)  an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or

    (b)  a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.

    …

    trade qualification means:

    (a)  an Australian trade qualification obtained as a result of the completion of:

    (i)   an indentured apprenticeship; or

    (ii)   a training contract;

    that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:

    (iii)  part-time formal training at a technical college or a college of technical and further education; and

    (iv)  employment within the meaning of:

    (A)  an industrial award under a law of the Commonwealth or of a State or Territory; or

    (B)  a law of a State or Territory dealing with commercial or industrial training; or

    (b)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

    (c)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

11. Regulation 1.15F(2) defines the term ‘completed’ in relation to a degree, diploma or trade qualification as follows:

    (2) In this regulation:

    completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

    Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

12. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC [2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. The term ‘completed’ was also considered in Sapkota v MIAC [2012] FCA 981 where Cowdroy J held the relevant date for determining when a student has completed the academic requirements is ‘the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution’. The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.

13. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the applicant meet the Australian study requirement? And, if so,

    (b)  Was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application?

    CONSIDERATION

14. The applicant listed the following Australian study in his visa application and provided evidence confirming completion of the following:

    Master of Commerce

    (Professional Accounting)                   University of Queensland  28/07/14 to 09/08/16

    Graduate Diploma of Marketing            Central Queensland University               07/11/16 to 16/06/17

15. The delegate refused the visa, including on the basis that the graduate diploma qualification was not one of the eligible qualifications for the Graduate Work Stream and therefore the Australian study requirement was not met.

    Issue 1 - Does the applicant meet the Australian study requirement?

16. The Tribunal therefore first considered whether:

    (a)  the Graduate Diploma of Marketing is a postgraduate diploma; and

    (b)  the entry level to the Graduate Diploma of Marketing qualification is satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award.

17. The Tribunal notes that in Bhatt v MIAC [2012] FCA 918, Buchanan J concluded that:

    Graduate certificates are not in name, recognition or significance the same qualification as postgraduate diplomas

    but was not required to, and did not, reach any conclusion in relation to graduate diplomas.

18. Neither the word ‘postgraduate’ nor the term ‘postgraduate diploma’ is defined in the Regulations. The Tribunal therefore considered the ordinary meaning of the term ‘postgraduate’ and considered dictionary definitions. The Macquarie Dictionary Online provides that the adjective ‘postgraduate’ means ‘of or relating to courses of study offered for a higher degree’, and the Oxford English Dictionary Online meaning of the adjective ‘postgraduate’ is ‘of or relating to the period after graduating; designating a course or institution for people undertaking a higher qualification after completing a first degree, or a student taking such a course’.

19. Notably also, according to the Australian Qualifications Frameworks (AQF), AQF Level 8 includes a bachelor honours degree, a graduate certificate and a graduate diploma.

20. The Tribunal has made enquiries of Central Queensland University in relation to the prerequisites or entry level to the Graduate Diploma of Marketing course at that institution and was advised that the prerequisite was either an Australian bachelor’s degree or a previous diploma from Central Queensland University. Further, a master degree was neither of these but would instead be assessed separately. Given the university accepted the applicant’s prior Masters qualification, and that a Masters qualification is at AQF level 9, the Tribunal is satisfied and finds that the master’s degree which was accepted as satisfying the required prerequisite for the Graduate Diploma course was at least ‘an equivalent award’ for the purposes of r.2.26AC(6).

21. The Tribunal is therefore satisfied that the Graduate Diploma of Marketing at Central Queensland University is a ‘degree’ as that term is defined for the purposes of r.1.15F: r.2.26A(6).

22. The Tribunal is also satisfied that the Master of Commerce is a degree pursuant to r.2.26AC(6).

23. The Tribunal therefore finds that the applicant completed two qualifications in Australia, a Master of Commerce (Professional Accounting) and a Graduate Diploma of Marketing, which are both degrees as defined in r.2.26AC(6).

24. Having regard to all evidence and material before it, including Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and the Provider Registration and International Students Management System (PRISMS) records, the Tribunal finds that the courses are both registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide courses to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.

25. A letter from the University of Queensland dated 7 September 2017 states, amongst other things, that the applicant commenced the Master of Commerce on 28 July 2014 and completed the academic requirements for the course on 4 August 2016. A letter from Central Queensland University dated 28 July 2017 states that the applicant completed the requirements for award of the Graduate Diploma on 6 July 2017 with the award conferral date of 24 July 2017. The applicant’s study was therefore as a result of courses that were completed in a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met.

26. CRICOS records show that the duration of the Master of Commerce course is 78 weeks, the duration of the Graduate Diploma of Marketing course is 52 weeks (that is, more than two academic years combined) and, further, that all instruction for the courses is in English. Based on this evidence, the Tribunal is satisfied that the applicant meets the requirements of rr.1.15F(1)(c) and 1.15F(1)(d).

27. Based on records from the Department of Immigration and Border Protection (the Department), the Tribunal is satisfied that the applicant held the following visas:

    Subclass 573 Higher Education Sector visa                  24 April 2014 to 19 February 2016

    Subclass 010 Bridging visa  4 January 2016 to 19 February 2016

    Subclass 573 Higher Education Sector visa                  19 February 2016 to 30 August 2016

    Subclass 010 Bridging visa  30 August 2016 to 12 October 2016

    Subclass 500 Student visa  12 October 2016 to 3 April 2017

    Subclass 010 Bridging visa  31 March 2017 to 7 May 2017

    Subclass 500 Student visa  7 May 2017 to 20 December 2017

28. The Tribunal is therefore satisfied that the applicant undertook the courses while in Australia as the holder of various visas authorising him to study.[1] Regulation 1.15F(1)(e) is met.

    [1] In accordance with cl.010.611(4)(a)(i) of Schedule 2 to the Regulations, when a Bridging Visa Class A is granted to the holder of a student visa, at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. The Department’s records show that the only additional condition imposed upon the applicant’s Subclass 010 visas was condition 8105 prohibiting work of more than 40 hours per fortnight when the applicant’s course was in session (applicable only if doing a course other than a masters by research or a doctorate course).

29. Paragraphs (a) to (e) of r.1.15F(1) having been met, the Tribunal is therefore satisfied and finds that the applicant meets the Australian study requirement.

    Issue 2 - Was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application?

30. In considering whether that requirement was met in the period of six months immediately before the day of the visa application, the Tribunal notes that the Department’s policy guidelines contained in its Procedures Advice Manual (PAM3) states as follows in relation to the Australian study requirement under the Graduate Work stream:

    When must the study have been undertaken

    …

    ·if the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the VC-485 application was made.

31. The applicant’s most recently completed qualification was the Graduate Diploma of Marketing, which the Tribunal has found is an eligible qualification. Based on the 28 July 2017 letter from Central Queensland University, the Tribunal is satisfied and finds that the applicant completed that qualification on 6 July 2017 which is within the period of six months immediately before the day of the visa application on 13 September 2017.

    Conclusion

32. Given the Tribunal’s findings, the applicant meets cl.485.221.

33. Consistent with paragraph 8.2 of the Tribunal President’s Direction – Conducting Migration and Refugee Reviews (30 June 2015) – which provides that, as a general rule, where the delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters, the Tribunal confined its review to consideration of cl.485.221.

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

    DECISION

35. 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.

    Susan Trotter
    Member