Zheng (Migration)

[2020] AATA 5796

Zheng (Migration) [2020] AATA 5796 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jingwei Zheng

CASE NUMBER:  1933936

HOME AFFAIRS REFERENCE(S):          BCC2019/4142362

MEMBER:Kira Raif

DATE:11 December 2020

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 11 December 2020 at 5:49pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – studies completed in the previous 6 months – University evidence of course completion date – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15, 2.26

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 18 November 2019 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 21 August 2019. The delegate was not satisfied the evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application as required by cl.485.231.

3. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.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.

   Does the applicant hold a specified qualification?

5. 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 Bachelor of Business (Marketing) which is a qualification specified in that instrument. Accordingly, cl.485.231(1) is met.

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

6. 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.

7. In this case, the applicant’s qualification was conferred or awarded by Monash University, which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offers courses at degree level and above, and which is therefore an educational institution specified in that instrument. Accordingly, cl.485.231(2) is met.

   Does the applicant meet the Australian study requirement?

8. 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.

9. 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.

10. ‘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, 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.

11. The evidence the applicant provided to the Department did not demonstrate the date that he completed the course within the meaning of r.1.15F) and the delegate was not satisfied that he met the requirements of cl.485.231.

12. The applicant has now provided the Tribunal a copy of a letter of completion from Monash University dated 18 November 2019 stating that the applicant commenced the course on 27 July 2015 and finished it on 15 July 2019. The Tribunal accepts this evidence and finds he completed the course in the 6-months immediate before the application was made.

13. Evidence before the Tribunal also confirms that the course was registered on CRICOS as requiring 156 academic weeks of study, the applicant completed it over a period of 47 calendar months and it was conducted in English. The applicant held subclass 573 and 500 visas, permitting him to undertake the relevant study during this period.

14. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

    ·the applicant's Bachelor of Business (Marketing), a Degree within the meaning of r.2.26AC(6), was completed in the 6 months immediately before the application was made;

    ·the course was a CRICOS registered course:

    ·the course was completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the applicant held a student visas authorising his study in Australia.

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

16. 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

17. 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.

    Kira Raif

    Senior Member