Wu (Migration)

[2019] AATA 2795

Wu (Migration) [2019] AATA 2795 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mengze Wu

CASE NUMBER:  1906037

HOME AFFAIRS REFERENCE(S):           BCC2018/4620149

MEMBER:Karen Synon

DATE:13 June 2019

PLACE OF DECISION:  Melbourne

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(3) of Schedule 2 to the Regulations

Statement made on 13 June 2019 at 10:04am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – relevant date of completion – date on which results are finalised by educational institution – date of conferral – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231

CASES
Sapkota v MIAC [2012] FCA 981

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 26 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 22 October 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(3) of Schedule 2 to the Regulations because he did not provide evidence that he had completed his qualification within the period of 6 months ending immediately before the date the application was made.

4. The applicant applied for review of the primary decision on 14 March 2019 and provided a copy of the department’s decision record.

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 him to appear before the Tribunal to give evidence in relation to the decision under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies the requirements of cl.485.231(3) of Schedule 2 to the Regulations.

8. 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.

9. 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.

10. 'Degree', 'diploma', 'trade qualification', 'registered course', 'completed' and 'academic year' are all defined terms: see r.1.03, r.1.15F and r.2.26AC(6) of the Regulations.  The term 'completed', in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award: r.1.15F(2) of the Regulations.

11. The Tribunal notes the definition of 'completed' was considered in Sapkota v MIAC[1] 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 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.

    [1] Sapkota v MIAC [2012] FCA 981.

12. The delegate refused the visa based on the education transcript issued by The University of Western Australia which confirmed that the award of Bachelor of Commerce (Accounting, Finance) was certified on 30 July 2018 however a course completion date was not provided.

13. On review the applicant provided a ‘Statement of Qualification’ issued by the University of Western Australian dated 27 February 2019.  This states that the applicant completed his Bachelor of Commerce (Accounting, Finance) on 10 July 2018.  As the applicant applied for the visa on 22 October 2018 the Tribunal finds that this qualification was completed within the 6 months immediately before the day the visa application was made.

14. Further, on the basis of other evidence provided, namely the academic transcript and a ICSE Movement Check, the Tribunal finds that this qualification was a: registered course; completed in a total of at least 16 months; as a result of at least 2 years academic study; was conducted in English; and completed by the applicant while he was the holder of a student visa authorising him to study.

15. Based on this evidence the Tribunal finds that the applicant satisfies the Australian study requirement in the 6 months immediately preceding the date of his Subclass 485 visa application and he therefore meets cl.485.231(3).

16. On the basis, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. 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(3) of Schedule 2 to the Regulations.

    Karen Synon
    Member