Wong (Migration)

[2019] AATA 2790

Wong (Migration) [2019] AATA 2790 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chin Wai Blanca Wong

CASE NUMBER:  1823946

HOME AFFAIRS REFERENCE:                BCC2018/3734764

MEMBER:Lilly Mojsin

DATE:13 June 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 criteria for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 13 June 2019 at 1:36pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Business (International Resort and Hotel Management) – Torrens University – 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 Home Affairs on 7 August 2018 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 June 2018. 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.485.231 of Schedule 2 to the Regulations because the delegate found that the applicant did not complete course work within the last 6 months immediately before the date the application was made.

4. In reaching its decision the Tribunal did not find it necessary to invite the applicant to a hearing, as it was able to decide the review in the applicant's favour on the basis of the material before it: s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 review is whether the applicant meets those requirements.

6. 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 Bachelor of Business (International Resort and Hotel Management) which is a qualification specified in that instrument.  Accordingly, cl.485.231(1) is met.

7. 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.

8. In this review, the applicant’s qualification was conferred or awarded by the Torrens University which is an educational institution specified in that instrument.  Accordingly, cl.485.231(2) is met.

9. 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.

10. 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.

11. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). For the purposes of this review, ‘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.

12. The applicant applied for the visa on 13 June 2018. The applicant’s results were confirmed  on 10 April 2018 by Torrens University and on 12 June 2018 the University confirmed she had completed all course requirements and was eligible to graduate. 

13. A letter from the University confirms the applicant commenced studies on 30 September 2015 and completed studies on 30 April 2018. 

14. The Tribunal is satisfied that the specified qualification, a Bachelor of Business (International Resort and Hotel Management), is a course that is a registered course, completed in a total of at least 16 calendar months as a result of at least 2 academic years study for which all instruction was conducted in English whilst holding a visa authorising study.

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

16. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231.

17. 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 criterion for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member