Wong (Migration)

[2017] AATA 663

Wong (Migration) [2017] AATA 663 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sze Yui Wong

CASE NUMBER:  1603246

DIBP REFERENCE(S):  BCC2015/2682434

MEMBER:D. Dimitriadis

DATE:26 April 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 April 2017 at 3:48pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Accountant – Australian study requirement – Course completed within 6 months preceding visa application date

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, r 1.03, r 1.15F, r 2.26AC(6), cl 485.111, cl 485.221, cl 485.222

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 11 March 2016 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 14 September 2015. 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). 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.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 7 April 2017 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the Australian study requirement in the 6 months ending immediately preceding the day before the day the visa application was made (cl.485.221); and, secondly that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

7. In the visa application, the applicant nominated the skilled occupation of Accountant (General) (ANZSCO Code 221111).

8. In the visa application, the applicant stated that her Australian qualifications are a Bachelor of Commerce degree undertaken at University of New South Wales from 28 February 2011 to 28 February 2014 and a Master of Financial Analysis degree (by coursework) at University of New South Wales from 28 July 2014 to 14 July 2015.  

9. The applicant provided to the Department of Immigration and Border Protection (the Department) a number of documents including copies of the following:

   ·Bachelor of Commerce awarded to the applicant on 19 March 2014;

   ·Academic transcript for the Bachelor of Commerce degree.

10. On 28 January 2016 the Department wrote to the applicant and requested that she provide further information, including completion letters from her Australian education provider showing the course commencement date, completion date and study load.

11. Information on the Department’s file is that the applicant provided to the Department the academic transcript from the University of New South Wales which confirmed that the applicant completed the Bachelor of Commerce on 28 February 2014 and that she commenced the Master of Financial Analysis course in Semester 2, 2014. However, no reference was made to the completion date for the Master of Financial Analysis.

12. The delegate was not satisfied that the applicant completed the Master of Financial Analysis at the University of New South Wales within the period of six months immediately before the visa application was made. The delegate found that the applicant did not satisfy cl.485.221 and did not meet the criteria for a Subclass 485 visa.

13. The applicant applied for review with the Tribunal and provided a number of documents including copies of the delegate’s decision record, Master of Financial Analysis degree from the University of New South Wales awarded to the applicant on 31 July 2015, letter dated 14 October 2015 from University of New South Wales and letter dated 11 March 2016 from the applicant.

14. The applicant stated in her letter dated 11 March 2016 that she is a full-time insolvency Accountant and intends to apply for a Subclass 189 visa. The applicant stated that when she received the refusal from the Department, she realised that she had failed to provide a completion letter for her Master of Financial Analysis.  

15. On 28 March 2017 the Tribunal wrote to the applicant and requested that she provide to the Tribunal formal letters of completion from the university for her Bachelor of Commerce and Master of Financial Analysis degrees.

16. The applicant held a hearing on 7 April 2017 and informed the applicant of the requirements of cl.485.221 and r.1.15F(2).

17. On 12 April 2017 the Tribunal received from the applicant copies of an Academic Transcript, Awards Statement and Enrolment Statement from University of New South Wales.

18. Clause 485.221 provides:

    The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made. 

19. 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.

20. ‘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).

21. The Tribunal has had regard to the evidence and is satisfied based on the Academic Transcript, Awards Statement and Enrolment Statement from University of New South Wales that the applicant completed a Bachelor of Commerce on 28 February 2014 and a Master of Financial Analysis on 14 July 2015 and this is in the period of 6 months ending immediately before the visa application was made on 14 September 2015.

22. The Tribunal is satisfied based on the Enrolment Statement that the applicant commenced the Bachelor of Commerce on 28 February 2011. The Tribunal is satisfied based on the Enrolment Statement that the applicant commenced the Master of Financial Analysis on 28 July 2014. 

23. The Tribunal is satisfied that the courses, Bachelor of Commerce and Master of Financial Analysis, are registered courses (r.1.03). The applicant satisfies r.1.15F(1)(a).

24. The applicant commenced the Bachelor of Commerce degree on 28 February 2011 and completed the degree on 28 February 2014. She commenced the Master of Financial Analysis degree on 28 July 2014 and completed that degree on 14 July 2015. CRICOS (Commonwealth Register of Institutions and Courses for Overseas Students) shows that at University of New South Wales, a Bachelor of Commerce has a course duration of 156 weeks and a Master of Financial Analysis (by coursework) has a course duration of 52 weeks. The Tribunal is satisfied that the two degree completed by the applicant were completed in a total of at least 16 calendar months and were completed as a result of at least 2 academic years study. The applicant satisfies r.1.15F(1)(b) and (c).

25. The Awards Statement from University of New South Wales states that the language of tuition is English. The applicant satisfies r.1.15F(1)(d).

26. The Tribunal has had regard to the applicant’s movement records and is satisfied that the applicant completed the two degrees while in Australia as the holder of a visa authorising her to study. The applicant held a Subclass 573 Student visa from 22 November 2010 to 4 March 2014 and held a further Subclass 573 visa from 21 July 2014 to 30 September 2015. The Tribunal is satisfied that the applicant undertook the courses while in Australia as the holder of a visa authorising the applicant to study. The applicant satisfies r.1.15F(1)(e).

27. The applicant satisfies the Australian study requirement as she has completed two degrees for award by an Australian educational institution as a result of courses that meet r.1.15F(a) to (e). The applicant completed the second degree (Master of Financial Analysis) on 14 July 2015. She applied for the Subclass 485 visa on 14 September 2015.

28. On the basis of these findings 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.

29. The Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

30. 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.

    D. Dimitriadis
    Member