XU (Migration) - [2018] AATA 1568

XU (Migration) [2018] AATA 1568 (28 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dong Xu
CASE NUMBER:  1705323
DIBP REFERENCE(S):  BCC2017/138573
MEMBER:Katie Malyon
DATE:28 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 28 March 2018 at 4:15 pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant satisfies the study requirement of 92 weeks – Studies cumulatively greater than 92 weeks – Whether the applicant’s studies are “closely related” to his nominated occupation – Computer Network and Systems Engineer – Advanced Diploma in Translation – Studies not closely related to nominated position – Decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F, 2.26AC(6), Schedule 2, cls 485.221, 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Prasad v MIAC [2012] FCA 591
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2017 to refuse to grant the applicant, Mr Dong Xu, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
Mr Xu applied for the visa on 11 January 2017. 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 delegate refused to grant the visa as Mr Xu did not satisfy cl.485.221 and cl.486.222 of Schedule 2 to the Regulations because his Bachelor of Information Technology degree obtained from the University of Wollongong (UoW) was completed on 15 December 2015 which is more than 6 months prior to lodging his Subclass 485 visa application and, furthermore, his Advanced Diploma of Translating from Abbey College Australia (Abbey) completed on 10 November 2016 was not closely related to his nominated occupation of Computer Network and Systems Engineer ANZSCO 263111. A copy of the delegate’s decision was provided to the Tribunal.
Mr Xu appeared before the Tribunal on 28 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages: however, the Tribunal notes that Mr Xu had only occasional use of the interpreter. Mr Xu was represented in relation to the review by his registered migration agent. Although the representative not attend the hearing, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: XU (Migration) [2018] AATA 1568
Case: [2018] AATA 1568
Decision Date: 28 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Xu, who sought to satisfy the primary criteria for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) in the Graduate Work stream. The dispute centred on whether Mr. Xu met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine two key legal issues: first, whether Mr. Xu had satisfied the ‘Australian study requirement’ in the six months immediately preceding his visa application; and second, whether each qualification relied upon to satisfy this requirement was ‘closely related’ to his nominated skilled occupation. The nominated occupation was Computer Network and Systems Engineer.

The Tribunal reasoned that the ‘Australian study requirement’ necessitates completion of at least two academic years of study, defined as a minimum of 92 weeks, from registered courses with instruction in English, undertaken in Australia. Mr. Xu provided evidence of a Bachelor of Information Technology degree completed in December 2015 and an Advanced Diploma of Translating completed in November 2016. While the Bachelor of Information Technology met the duration requirement, the Advanced Diploma of Translating, registered for 50 weeks, did not meet the 92-week minimum when considered alone. Crucially, the Tribunal found that the Advanced Diploma of Translating was not closely related to the nominated occupation of Computer Network and Systems Engineer, which involves technical IT roles as outlined in ANZSCO Version 1.2.

Consequently, the Tribunal concluded that Mr. Xu did not satisfy the Australian study requirement as defined by the regulations, nor the closely related qualification criterion. Therefore, the decision under review, which was not to grant the visa, was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Mr Xu 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: first, the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and second, each qualification - that is, 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 Mr Xu meets those requirements.Does the applicant meet the Australian study requirement? 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: (a) that are registered courses; and,(b) that were completed in a total of at least 16 calendar months; and,(c) that were completed as a result of a total of at least 2 academic years study; and,(d) for which all instruction was conducted in English; and,(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. ‘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 and cl.485.111 of Part 485 of Schedule 2 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. 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. The Department’s file contains copies of Mr Xu’s Bachelor of Information Technology degree and Academic Transcript from UoW together with a letter from UoW confirming Mr Xu completed his Bachelor of Information Technology degree on 15 December 2015. In addition, the Department’s file contains the completion letter from Abbey confirming Mr Xu completed his Advanced Diploma of Translating on 10 November 2016 together with a copy of the Academic Transcript from Abbey. Mr Xu’s representative also provided a copy of the completion letter from Abbey and the Academic Transcript to the Tribunal. Based on evidence set out on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that an Advanced Diploma of Translating at Abbey is registered for 50 weeks and that all instruction is in English.[1] As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years study - that is, at least 92 weeks of study consistent with IMMI 09/040 - the Tribunal finds that, relying on his Advanced Diploma of Translating qualification alone, Mr Xu does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day his Subclass 485 visa application was made on 11 January 2017 as required by cl.485.221 of Schedule 2 to the Regulations. [1]

Decision

Reasons for decision

On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant Subclass in this case, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Katie MalyonMemberAnnexure A – Extract from ANZSCO Version 1.2UNIT GROUP 2631 COMPUTER NETWORK PROFESSIONALS COMPUTER NETWORK PROFESSIONALS research, analyse and recommend strategies for network architecture and development, implement, manage, maintain and configure network hardware and software, and monitor and optimise performance, and troubleshoot and provide user support. Indicative Skill Level:In Australia and New Zealand: Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).Tasks Include: oanalysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems oresearching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance oassessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems oproviding specialist skills in supporting and troubleshooting network problems and emergencies oinstalling, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations oproviding network programming in support of specific business needs and requirements opreparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions omonitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performanceOccupations: 263111 Computer Network and Systems Engineer 263112 Network Administrator 263113 Network Analyst263111 COMPUTER NETWORK AND SYSTEMS ENGINEER Plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems. Skill Level: 1 Specialisations: Computer Network Engineer Computer Systems Integrator263112 NETWORK ADMINISTRATOR Alternative Titles: Network Specialist Network SupportInstalls and maintains hardware and software, documents diagnosis and resolution of faults, manages user passwords, security and inventory documentation, ensures the efficient performance of servers, printers and personal computers, and attends to other operational tasks. May also perform tasks such as help desk support and user training. Skill Level: 1 Specialisation: LAN Administrator263113 NETWORK ANALYST Alternative Titles: Network Designer Network StrategistResearches and analyses network architecture, and recommends policies and strategies for designing, planning and coordinating an organisation's network such as the total system environment and architecture. May also perform operational tasks such as monitoring system performance, software and hardware upgrades, backups, support and network maintenance. Skill Level: 1 Specialisations: Network ArchitectNetwork Consultant oOOo

Ratio Decidendi

Legal Principle Established

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