ZHANG (Migration)

[2017] AATA 551

ZHANG (Migration) [2017] AATA 551 (21 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lu Zhang

CASE NUMBER:  1612999

DIBP REFERENCE(S):  BCC2016/2361527

MEMBER:Miriam Holmes

DATE:21 April 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 21 April 2017 at 9:07am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate (Post Study Work) stream – Australian study requirements – Course not completed 6 months preceding visa application date – Graduate Diploma in Education – Not higher level qualification

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Legislation Amendment Regulation 2013
Migration Regulations 1994, cl 485.231(3), IMMI 13/013, IMMI 09/040, 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 Immigration on 9 August 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 July 2016. 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 the applicant.

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 applicant held a specified qualification that satisfied the Australian study requirement and had been completed in the period of six months ending immediately before the day the visa application was made: cl.485.231(3).

4. The applicant appeared before the Tribunal by videoconference on 11 April 2017 to give evidence and present arguments. 

5. The applicant was represented in relation to the review by her registered migration agent, Mr D Calabro. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate (Post Study Work) stream which includes cl.485.231 of Schedule 2 to the Regulations. This clause requires that the applicant holds a qualification(s) of a kind specified by the Minister, that each qualification(s) was conferred or awarded by a specified educational institution and the applicant’s study for the qualification(s) satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

8. The Tribunal made the following findings based on the documents provided by the applicant to the Department and the Tribunal and the applicant’s oral evidence:

   ·The applicant is a citizen of China.

   ·In China the applicant studied a Bachelor of Science at Guangzhou University.

   ·In September 2013 the applicant arrived in Australia on a student (subclass 573) visa.

   ·In the period between September 2013 and December 2013 the applicant studied an EAP course to improve her English language skills at Murdoch Institute of Technology.

   ·Between 24 February 2014 and 10 December 2014 the applicant studied a Master of Education (Coursework) at Murdoch University. All course material and lectures were conducted in English. She completed the course on 10 December 2014.

   ·Between 2 March 2015 and 24 June 2016 the applicant undertook a Graduate Diploma in Education (Secondary Education) at Curtin University. This course was taught and assessed in English. The applicant completed all requirements for the Graduate Diploma in Education on 8 July 2016.

   ·On 14 July 2016 the applicant made an application for a Skilled (Provisional) (Class VC)(subclass 485) in the post study work stream.

9. Clause 485.231 states as follows:

   485.231

   (1)  The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

   (2)  Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.

   (3)  The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

10. In respect of subclause 485.231(1) the Minister has specified the qualifications in the instrument in writing , IMMI 13/013. IMMI 13/013 provides that the following qualifications that are as a result of study undertaken at Australian Qualifications Framework level seven or higher:

    (a)Bachelor Degree;

    (b)Bachelor ( Honours) Degree;

    (c)Masters by Coursework Degree;

    (d)Masters by Research Degree;

    (e)Masters (Extended) Degree and/or;

    (f)Doctoral Degree.

11. The Tribunal is satisfied that the applicant’s Master of Education (Coursework ) by coursework is a specified qualification and meets the requirement in cl.485.231(1). The Tribunal is not satisfied that the applicant’s Graduate Diploma in Education  is a specified qualification as described in IMMI 13/013 and therefore is not satisfied that qualification meets the requirement in cl.485.231(1).

12. In respect of subclause 485.231(2) the Minister has specified in an instrument in writing, IMMI13/031, that Australian universities and non university education providers are eligible educational 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.  The Tribunal is satisfied that Murdoch University and Curtin University are registered on CRICOS and offer courses at degree level and above. Therefore the Tribunal is satisfied that subclause 485.231(2) is met.

13. The central dispute in this case is whether cl.485.231(3) is met. In short, the Department delegate was not satisfied that it is met because the Master of Education course, which was the course specified and met the requirement in cl.485.231(1) was not completed in the period 6 months immediately preceding the day the visa application was made. The delegate adopted this approach in line with the Departmental policy set out in PAM 3. PAM 3 states as follows:

    The VC-485 primary applicant – Post-Study Work stream

    Background

    Eligibility

    Unlike applicants in the Graduate Work stream, applicants in the Post-Study Work stream are not required to nominate an occupation on the SOL or undertake a skills assessment. However, applicants in the Post-Study Work stream must have recently completed an eligible qualification/s and have added restrictions on the study that can be considered towards meeting the Australian study requirement (regulation 1.15F) and the requirements of 485.231. 

    The study and qualification requirements described in 485.231(1), (2) and (3) are interrelated. Applicants must satisfy all three requirements using the same qualification(s) and associated study. That is, an applicant cannot use one qualification or period of study to satisfy 485.231(1) and another qualification or period of study to satisfy 485.231(3).

    …

    The intention of 485.231(1) and the associated instrument is to support the policy objective that international students who undertake a Graduate Certificate or Graduate Diploma course which articulates into, or is nested in, a Bachelor or Masters Degree be eligible for the Post-Study Work stream provided they ultimately complete an eligible qualification. 

    • This provision also prevents applicants from padding their eligible qualification with lower level courses in order to meet the Australian study requirement.
    • Applicants will not satisfy this provision solely on the basis of having completed a Graduate Diploma or Graduate Certificate course. 

    Examples of eligible qualifications and associated study

    The following examples illustrate eligible and non-eligible courses of study for the Post-Study Work stream.

    Eligible

    Three years of study at the Bachelor degree level (AQF 7) resulting in completion of a Bachelor degree in Fine Arts.

    Two years of study in a Masters by Coursework (AQF 9) course resulting in completion of a Masters in Computer Programming.

    One year of study of a Graduate Diploma in Electrical Engineering (AQF 8), from which the credits are granted towards a further year of study in a Masters by Research course, resulting in completion of a Master of Engineering qualification (AQF 9): 

    • Although the Graduate Diploma is not an eligible qualification for the Post-Study Work stream, as it is closely related to the Master of Engineering and the completed units are recognised by the education provider as eligible for credit towards the Masters degree, this course of study is acceptable. 

    One year of a Masters by coursework (AQF 9) in Architecture followed by another year of Masters by research (AQF 9) in Business Administration: 

    • ​Two unrelated Masters courses that are completed when study is undertaken for at least two academic years (as required by the Australian study requirement) is acceptable. 

    Ineligible

    Two years of study in an Associate Degree course (AQF 6) in Accounting that credits towards a further year of study in a Bachelor degree (AQF 7) resulting in completion of a Bachelor degree in Accounting: 

    • this is not an eligible combination of study as the Australian study requirement of at least two years academic study is not consecutively met at the level of AQF 7 or above. 

    Two years of a Masters Degree followed by a Graduate Certificate or a Graduate Diploma: 

    • the student would have to meet the Australian study requirement using the Masters Degree only. If the Masters Degree was completed within six months prior to application for the VC-485 visa, this qualification could be used to meet the Australian study requirement. 

    …

    Certain qualifications and study only

    Only those qualifications held and study undertaken by the applicant and which first satisfy 485.231(1) and 485.231(2) may be considered against the Australian study requirement. Other qualifications attained by the applicant and other study undertaken which has not been considered against and satisfied these criteria cannot then be considered against the Australian study requirement.

14. In response, the applicant submits that cl.485.231(3) is met because the Graduate Diploma in Education was completed on 8 July 2016, shortly before the visa application was made on 14 July 2016. The applicant’s representative submits that different qualifications can meet the separate requirements in subclauses (1) and (3) of clause 485.231. The applicant’s representative submits that the applicant does hold the higher qualification as specified in subclause (1) and she should not be disadvantaged due to the order in which she completed her qualifications. The applicant’s representative submits that the regulation does not state “and” after each subclause insinuating that it needs to be the same qualification and the subclause (3) also does not state it needs to be the eligible qualification rather it allows for multiple qualifications. Further, he submits, subclause 485.231(3) does not refer to the qualification being a specified qualification. At hearing, the representative submitted the applicant has the higher qualification at AQF level 7 that is required for the visa and there is no reason not to add the qualifications together to meet the Australian study requirement.

15. At the hearing, the representative also submitted that the IELTS score for a Graduate Diploma entry is 7.5, although a person can enter a Graduate Diploma course if they hold a Masters, but the IELTS entry requirement for a Masters is 6.5. He states that the applicant was not “padding” her courses to meet the Australian study requirement, rather the applicant required the Graduate Diploma to be registered as a teacher.

16. At the hearing the applicant explained that when she was in China and studying the Bachelor of Science she was offered the opportunity to travel to Australia to study. The study option made available was to come to Murdoch University and complete a fourth year and receive a Master of Education. She stated that she did not have alternative course options. After completing her Master of Education course the applicant sought to be registered as a school teacher, however she was advised that to be registered as a teacher in Western Australia she required a Graduate Diploma in Education and the Masters qualification was not sufficient. Consequently, she undertook the Graduate Diploma at Curtin University.

17. The Tribunal invited the applicant to comment on the Department policy. The applicant states that it was impossible for her to do the Graduate Diploma first because she was only offered the Masters qualification through Murdoch University to come to Australia. The applicant explained that the Graduate Diploma course is only supposed to take one year to complete. However, she had health issues and was unable to complete the course in one year. With the support of a counsellor she reduced her study load in Semester 2 of 2015 and had a reduced study load in Semester 1 of 2016. This is consistent with the letter dated 13 July 2016 from Curtin University which notes that applicant had a study load of 62.5 credit points and 37.5 credit points in Semester 2 2015 and semester 1 of 2016 respectively and that a study load below 75 credit points in a half year is considered part time. 

18. 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.

19. ‘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).

20. The Tribunal had regard to whether the Master of Education qualification meets the requirements in cl.485.231(3). The Tribunal finds that the applicant’s Master of Education is a registered course in CRICOS and is registered in CRICOS for a duration of 78 weeks, being a one year course ( being at least a total of 46 weeks) but less than a two year course (as it is less than at least a total of 92 weeks). The Tribunal notes that this course was offered in Australia and the applicant only studied the Masters in Australia between 24 February 2014 and 10 December 2014, although the confirmation of enrolment notes it is an offer conditional on completion of the Bachelor Degree from Guangzhou and successful completion of the Guangzhou University/Murdoch University Pre- Masters Program. The Tribunal finds that the Masters course was registered for less than 92 weeks and therefore does not meet the requirement in r.1.15F(1)(c). In addition, the applicant completed the course on 10 December 2014, not in the six months preceding the visa application being made. Therefore, the Tribunal is not satisfied the Master of Education qualification meets the requirement in cl.485.231(3).

21. The Tribunal considered the submissions by the applicant that the Graduate Diploma in Education meets the requirement in cl.485.231(3). The Tribunal had regard to the Explanatory Statement to the Migration Legislation Amendment Regulation 2013 (No. 1) when cl.485.231 was introduced and the Explanatory Statement for IMMI 13/013. The Tribunal considers that the regulation has been designed to restrict entry to persons who have completed a higher level specified qualification in the six months preceding the visa application. The regulation in subclause (1) restricts the types of qualifications that are specified and eligible, then subclause (2) operates to ensure the specified qualification is from an appropriately recognised tertiary institution. Subclause (3) refers to the applicant’s study for “the” qualification or qualifications meeting the Australian study requirement. The Tribunal considers the use of the word “the” before “qualification” is intended to direct that the qualification(s) to be considered against subclause (3) is “the qualification(s)” that met subclauses (1) and (2). If any qualification could qualify (for example a trade qualification) under the Australian study requirement then subclause (3) could be drafted to refer to “a” or “any” qualification(s). Further, the Tribunal considers that if any qualification under the Australian study requirement (including a trade qualification) could meet subclause (3), but not the other subclauses, then this would undermine the purpose of the regulation in subclauses (1) and (2) as to the appropriate standards of qualification to be relied on to meet the post study work stream level. In essence, the Tribunal considers that the purpose of subclause (3) is to ensure that the specified qualification(s) has currency ( ie be gained in the six month period prior to the visa application). The Tribunal considers the Department policy set out in PAM 3 is consistent with the wording of the regulation. Therefore, the Tribunal is not persuaded that the Graduate Diploma in Education qualification can be relied on by the applicant to meet the requirement in cl.485.231(3). Therefore the Tribunal is not satisfied that the applicant meets the requirement in cl.485.231(3).

22. The applicant provided other evidence to the Tribunal regarding her role as a teacher at Rossmoyne Senior High School. As discussed at the hearing, these are not matters the Tribunal can take into account in assessing whether the visa application meets the requirement in cl.485.231.

23. The Tribunal finds that the applicant does not satisfy cl.485.231(3). Therefore, the applicant does not meet cl.485.231.

24. 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 subclass in this case, the decision under review will be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Miriam Holmes
    Senior Member