Zhao (Migration)

[2024] AATA 135

Zhao (Migration) [2024] AATA 135 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Yixuan Zhao

CASE NUMBER:  2116212

HOME AFFAIRS REFERENCE(S):          BCC2020/2352314

MEMBER:Warren Stooke AM

DATE:4 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2024 at 4:26pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Doctor of Philosophy – course completion date – acknowledgement of receipt of thesis – thesis had not been assessed – decision under review affirmed

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

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 2 November 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 applied for the visa on 23 September 2020. 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 (Cth) (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, 485.232 and 485.233.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because based on the evidence provided by the applicant, the delegate was not satisfied the PhD RS Population Health (9602) meets Regulation 485.231 as the applicant has not provided sufficient evidence that the course was completed in the 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 13 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6. The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and has read the decision.

7. The applicant stated that she had provided a copy of the decision to the Tribunal with the application for review.

8. The applicant stated that she understood her visa application was refused because the Department Officer did not think the applicant completed her study when completing her application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). The issue in the present case is whether the applicant meets those requirements.

11. The applicant was granted a Bridging Visa A on 23 September 2020 with condition 8501 to maintain health insurance that became active on 21 April 2021 when the applicant’s Student Temporary visa ended.

12. The applicant provided evidence of a National Police Certificate dated 24 September 2020 for name check only that identified ‘no disclosable court outcomes’.

13. The applicant provided evidence of undertaking a PTE English language test on 31 August 2020 with an overall score of 62.

14. At the commencement of the hearing the Tribunal stated that cl 485.231 requires:

    ‘The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made’.

15. The Tribunal asked the applicant: Do you understand? The applicant responded: “I don’t know what is satisfy”.

16. The applicant provided the Tribunal with correspondence from the Australian National University dated 22 September 2020, which included the following information:

    “22 September 2020 Reference: 1000502715

    Dear Yixuan Zhao

    Congratulations! I am pleased to acknowledge the receipt of your research thesis for examination. We recognise that this is the culmination of years of hard work and dedication and we hope it has also been a rewarding and enjoyable intellectual and personal experience for you.

    We will promptly dispatch your thesis to the approved examiners whom are given a notional two months from receipt of your thesis to complete their reports. Please note: this timeline may vary depending on identification and availability of examiners. The examination process typically takes between three and four months. Although it is a confidential process you are welcome to make contact with the Graduate Research Office to check on the progress of your examination at any time.

    We recommend that you review the possible results of a thesis examination. It is common for candidates to be asked to make amendments and corrections to their thesis by examiners. Please allow for time to make any amendments that may be requested.

    Graduation ceremonies are held in July and December each year. Research degrees can be conferred in absentia (without attending a ceremony) but on successful completion of your thesis, we hope you and your guests will be able to join in the celebrations at a ceremony. Our office provides information about graduation closer to the event.

    If you need to provide evidence to potential employers or others about your educational status, you are invited to use this letter as evidence of submission of your research thesis.”

17. The Tribunal asked the applicant, if the correspondence of 22 September 2020 related to the acknowledgement of receipt of the applicant’s thesis and the applicant responded: “Yes”.

18. The applicant stated that she had completed her PhD but it had not been awarded.

19. The applicant provided evidence of correspondence form the Australian National University dated 11 December 2020, as follows:

    “11/12/2020 Reference: 1000502715
    Dear Yixuan Zhao

    It is my pleasure to advise you the Associate Dean approved the award of your degree of Doctor of Philosophy. Congratulations on this significant achievement.
    You will be invited to have your degree conferred at the next graduation ceremony. Information about the graduation ceremony will be available at: and an invitation will be sent to your ANU student email, together with other important documents, approximately two months before the ceremony. You will not be able to commence using your doctorial title, until the degree has been conferred.

    If you require use of your doctorial title and/or your graduation documents sooner, you may request for the degree to be conferred before the next graduation ceremonies. This request must be received no later than six weeks before the graduation ceremony. The University will arrange for in absentia conferral.
    Anonymous copies of the examiners reports are enclosed.

    I take this opportunity, on behalf of the ANU, to wish you all the best for your future career.

    If you have any questions about the thesis examination process, please contact [email protected].

    Yours sincerely,
    Ariel Edge

    Registrar, Student Administration”

20. The Tribunal informed the applicant that when she submitted her application, it would appear that the thesis had not been assessed. The applicant responded: “I did not know I had to pass the assessment before I submitted the application”.

21. The applicant submitted evidence of a completion letter from the Australian National University that provided the following information:

    “This is to confirm that Dr Yixuan Zhao (University ID number: U5987829) has successfully completed the requirements for the award of Doctor of Philosophy at The Australian National University.

    The student commenced their program on August 22, 2016 and successfully completed the requirements for the Doctor of Philosophy on December 16, 2020. If they have not done so already, the student will be eligible to graduate at the next graduation ceremony.

    The program was solely conducted and examined in English by The Australian National University, located in Canberra, Australian Capital Territory.

    Please note that the official confirmation of completion and awarding of degrees can be found on the official ANU Transcript of Academic Record and the Australian Higher Education Graduate Statement.

    Yours sincerely,
    Scott Pearsall
    University Registrar, Student Administration & Academic Services”

22. The Tribunal asked the applicant if she agreed with the information contained in the ANU correspondence relating to completion and the applicant responded: “Yes”.

23. The Tribunal asked the applicant what she was currently doing and the applicant responded that she was a Personal Assistant at ANU, on a part-time basis.

24. The applicant was informed by the Tribunal that she needed to take advice from an agent or lawyer, as to her options and that the applicant’s qualification needed to be assessed before submitting her application. The applicant responded: “Now I understand”.

    Does the applicant hold a specified qualification?

25. Clause 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.

26. In this case, the applicant holds a Doctor of Philosophy that was conferred on 16 December 2020, which is a qualification specified in that instrument.

27. Therefore the applicant satisfies cl 485.231(1).

    Does the applicant meet the Australian study requirement?

28. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

29. 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,

    ·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.

30. ‘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 registered under the Education Services for Overseas Students Act 2000: LIN 19/085.

31. The Tribunal is satisfied, based on the evidence, that at the time of submitting an application for a Skilled (Provisional) (Class VC) 485 visa, the applicant’s Doctor of Philosophy thesis had not been assessed by the Australian National University and that the degree was conferred on 16 December 2020. As such, the Tribunal is satisfied that the applicant has not met the requirements of cl 485.231.

32. The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

33. Accordingly, cl 485.231(3) is not met.

34. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Warren Stooke AM
    Member