YANG (Migration)

[2019] AATA 6038

YANG (Migration) [2019] AATA 6038 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms JING YANG

CASE NUMBER:  1810639

HOME AFFAIRS REFERENCE(S):           BCC2018/79761

MEMBER:Jennifer Cripps Watts

DATE:27 November 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 criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 27 November 2019 at 2:48pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – Australian study requirement – study completed prior to application – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.231, r 1.15F(1)

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 4 April 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 5 January 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 of Schedule 2 to the Regulations because the delegate was not satisfied that the educational qualification the applicant was relying on to meet the visa criteria was completed in the period of 6 months ending immediately before the day the application was made.

4. The applicant was represented in relation to the review by her registered migration agent, Ms Lei Zhu.

5. A hearing was scheduled and the applicant was invited to attend, in writing.  Prior to the hearing the applicant provided additional documents.  Information contained in the documents satisfied the Tribunal that the applicant meets the criteria on which the visa was refused, cl.485.213, and for that reason a hearing was not necessary.  It was cancelled and a positive decision was made by the Tribunal on the documentary evidence before it.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 case is whether the applicant meets those requirements.

8. The applicant provided documentary evidence with her visa application, including a letter on Australian National University (ANU) letterhead, dated 1 March 2018 and signed by Ljiljana Argy, indicating that the applicant ‘…completed the Program requirements in June, 2017’, and that she ‘…graduated from the Program in July 2017’.  The delegate, on the basis of this information, was not satisfied the applicant met cl.485.231 because it appeared she completed course requirements more than 6 months before the visa application was made.

9. The applicant has provided the Tribunal with a written statement and another letter from ANU correcting the date of course completion.  When the visa was refused, the applicant says:

   a.After finishing her last semester in 2017, she appealed her final grade, on the ground that she did not consider it to be reasonable

   b.Students have 20 days to appeal their grade

   c.That she discussed and argued her grade with her professor and, following this process, her final grade was confirmed on 5 July 2017

   d.Afterwards, she spoke to Ljiljana Argy (responsible for student engagement and related administration at the applicant’s college), who had provided the course completion letter that was before the delegate stating the applicant completed course requirements for her Master of International Relations in June 2017, and

   e.That she also spoke with Ms Argy’s line manager, Merran Coulter, and as a result of those discussions a letter on ANU letterhead signed by Ms Argy, dated 6 April 2018, was provided confirming that the applicant completed course requirements for her Master of International Relations on 5 July 2017.

10. The letter dated 6 Aprl 2018 is presented, and it is accepted by the Tribunal, as a correction to the earlier 1 March 2018 course completion letter.

    Does the applicant hold a specified qualification?

11. 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 Masters by Coursework Degree, which is a qualification specified in that instrument.

12. Accordingly, cl.485.231(1) is met.

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

13. 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 which specifies, for the purposes of cl.485.213(2) that Australian universities ‘…are eligible education institutions if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above’.

14. The Tribunal is satisfied that ANU, the university that conferred the qualification on the applicant is registered on the CRICOS.

15. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

16. 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.

17. 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.

18. ‘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, two ‘academic years’ is at least a total of 92 weeks, being the duration of a course registered under the (ESOS):  IMMI 09/040.

19. On the evidence, the Tribunal is satisfied that the applicant, who held a student at all relevant times:

    a.Commenced study of the Master of International Relations in July 2015 and completed course requirements on 5 July 2017

    b.The ANU Master of International Relations

    i.is a CRICOS registered course of 98 weeks duration,

    ii.that was completed in a total of at least 16 calendar months,

    iii.as a result of at least 2 academic years’ study and

    iv.for which all instruction was conducted in English

    c.Applied for the Subclass 485 visa that is the subject of this review on 5 January 2018

20. 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.

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

22. On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

23. 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.

    Jennifer Cripps Watts
    Member