Zhang (Migration)

[2023] AATA 3129

Zhang (Migration) [2023] AATA 3129 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jiaxin Zhang

REPRESENTATIVE:  Mr Alim Lim

CASE NUMBER:  2113262

HOME AFFAIRS REFERENCE(S):          BCC2020/529032

MEMBER:Alan McMurran

DATE:15 September 2023

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 485.221 of Schedule 2 to the Regulations

·cl 485.222 of Schedule 2 to the Regulations

Statement made on 15 September 2023 at 4:51pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – 89 weeks’ study instead of required 92 – late response to natural justice letter – hearing cancelled but written submissions invited and considered – CRICOS incorrectly recorded shorter duration – testamur from course provider confirms actual end date – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(3)
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.222(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 29 September 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 21 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Miss Jiaxin Zhang, applied for the visa on 21 February 2020. 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 (Cth) (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. There are no family members as secondary applicants to this application.

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 applicant had not met the Australian study requirement. This was because the delegate calculated on the available information that the applicant had only completed a course of 89 weeks’ duration instead of the required 92 weeks’ duration in order to meet the study requirement.

4. The applicant was represented in relation to the review.

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 cl 485.222 of Schedule 2 to the Regulations.

7. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) and secondly, unless limited circumstances apply, 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(1)).

8. The issue in the present case is whether the applicant meets those requirements.

   No Hearing

9. The Tribunal sent a natural justice letter to the applicant on 10 August 2023, which invited the applicant to respond on or before 25 August 2023. The letter provided particulars that the applicant was required to meet the Australian study requirement as set out in the relevant regulation, 1.15F(1).

10. The applicant did not respond in time due to a mistake on her part when she did not read the Tribunal’s letter correctly, and a hearing otherwise scheduled for 25 September 2023 was cancelled. The Tribunal notified the applicant accordingly.

11. On 1 September 2023, the applicant telephoned a Tribunal officer, who confirmed the hearing had been cancelled. The applicant however was given until 15 September to make any written submissions.

12. On 5 September 2019 the applicant’s representative notified the Tribunal of an appointment to act for the applicant, and on the same date provided a submission which comprised the Testamur from the applicant’s CRICOS-registered course provider, Supreme Business College Pty Ltd.

13. Section 360(3) of the Act provides that where an applicant has failed to provide information when invited and before the time for giving the information has passed, the applicant is not entitled to appear before the Tribunal. Accordingly, the Tribunal has proceeded to determine the matter on the basis of the available information and taking into account the additional submission made 6 September 2023 providing additional information, and without a hearing.

    Does the applicant meet the Australian study requirement?

14. Under reg 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.

15. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course or courses registered under the Education Services for Overseas Students Act 2000 (Cth): LIN 19/085.

16. In order to meet the Australian study requirement for the course duration, the applicant must have been enrolled in her registered course, Diploma of Early Childhood Education and Care (“the course”) for the required period of a minimum of 92 weeks (2 academic years of study). The delegate calculated the course requirement was not met because the course duration as recorded by CRICOS was for only 89 weeks, and therefore the applicant could not have studied for 92 weeks, even though her registration and completion date was recorded between 25 September 2017 (starting date) and 30 August 2019 (end date). On the applicant’s submission, her attendance exceeded the required 92 weeks rather than the 89 weeks proposed course completion as shown by CRICOS.

17. On 5 September, the applicant’s representative submitted that the requirement was met if the Tribunal accepts the actual completion date of 30 August 2019 and the fact it was therefore a course for this applicant of 97 weeks in total. The applicant submits that the delegate incorrectly calculated the length of the study component.

18. On 6 September 2023, the applicant submitted a copy of the Testamur from the course provider, issued 4 November 2019, and which confirmed that the applicant fulfilled the course requirements on 30 August 2019.  The Tribunal finds it accepts the document as evidence of the actual course completion date.

19. The Tribunal calculates that the course duration for the applicant for the period from 25 September 2017 to 30 August 2019 was a total of 704 days, or 100.57 weeks.

20. The Tribunal finds on the available information that the applicant completed the course over 100.57 weeks and not the 89 weeks as estimated in the CRICOS registered course information. The Tribunal prefers and accepts the information as to actual course time spent to completion, as confirmed by the Testamur from the course provider to the stated information estimate by CRIOCOS in the general information about the course.

21. The Tribunal finds that actual time spent by the applicant completing the course met the Australian study requirement for the number of weeks, as defined for the term ‘Academic Year’ in the Regulations.

22. In summary, the Tribunal is satisfied on the available information that the applicant’s qualification was:

    a.A CRICOS registered course by a registered course provider;

    b.Completed in at least 16 calendar months;

    c.Following 2 academic years (at least 92 weeks) of study;

    d.All instruction having been in English

    e.And while the applicant held the relevant visa authorising her study

23. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant meets cl 485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

24. In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation, unless the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was not made during that period.

25. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (regs 1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument LIN19/085.

26. In this case, the applicant nominated the occupation of Child Care Centre Manager which is a skilled occupation specified in LIN 19/051

27. The Tribunal finds on the available information it is satisfied that the applicant’s qualification from the course studied and Diploma obtained and used to satisfy the Australian study requirement in this case is closely related to the nominated skilled occupation of Child Care Centre Manager (ANZSCO 134111).

28. As the qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl 485.222.

29. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and 485.222. 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 criteria for a Subclass 485 visa:

    ·cl 485.221 of Schedule 2 to the Regulations

    ·cl 485.222 of Schedule 2 to the Regulations.

    Alan McMurran
    Member