Zheng (Migration)

[2023] AATA 1051

Zheng (Migration) [2023] AATA 1051 (13 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fangfang Zheng

REPRESENTATIVE:  Mr Kaixin Chen (MARN: 0321393)

CASE NUMBER:  1933802

HOME AFFAIRS REFERENCE(S):          BCC2019/4211381

MEMBER:Ian Berry

DATE:13 April 2023

PLACE OF DECISION:  Brisbane

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 13 April 2023 at 12:47pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – evidence of study completion – 6 months immediately before the visa application – advice from university – decision under review remitted       

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15

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 (DOHA) on 20 November 2019 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 24 August 2019. 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.

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 documents submitted by the applicant were unacceptable as evidence as to when the Master of business was conferred on 26 July 2019. That date was considered to be the date she received her qualification and as an example the graduation ceremony.

4. The applicant appeared before the Tribunal on 12 April 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. 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.

   Does the applicant hold a specified qualification?

8. Clause 485.231 is set out:

   (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.

9. 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 the following qualifications which are a qualifications specified in that instrument.

10. In this case, the applicant’s qualifications was conferred or awarded by the relevant institutions which are an educational institutions specified in that instrument:

    a.Master of Business (in the field of international business) (the Master qualification) awarded by the University of Queensland, completed between 19 February 2018 and 29 June 2019;

    b.Bachelor of Business (Tourism, Leisure and Event Management) (the Bachelor qualification) awarded by the University of the Sunshine Coast (USC Australia) on 17 November 2017, completed between 29 February 2016 and 15 December 2017.

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

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

12. Subclause 485.231(2) requires the applicant’s qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031.

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

    Does the applicant meet the Australian study requirement?

14. Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the six months immediately before the day the visa application was made.

15. 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 one 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.

16. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’ 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.

17. The definition of ‘completed’ is:

    ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award’

    Note:the academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification.  Therefore, a person can complete a degree, diploma or trade qualification, for subsection (2), before the award is formally conferred’

18. The Master Qualification attracted a score of 78 academic weeks of study, while the Bachelor Qualification attracted 156 academic weeks of study.  The applicant completed 134 academic weeks of study.

19. The Master Qualification commenced on 19 February 2018 and ended on or about 29 June 2019, while the Bachelor Qualification was completed between 29 February 2016 and ended 29 February 2017.  Therefore, the applicant aggregated more than 16 calendar months of study.

20. The applicants courses of study were in English and while she howled a visa authorising her to study.

21. The applicant provided to the Tribunal a letter from the University of Queensland’s Academic Registrar Mr Mark Erickson, certifying the applicant undertook her Master Qualification between 19 February 2018 and completed it on 3 July 2019 with the date of conferral on 16 July 2019.  The Tribunal is satisfied that to the applicant’s completion date of this qualification happened on 3 July 2019.

22. The Tribunal finds that the applicant’s study for the specified qualifications satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

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

24. 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

25. 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.

    Ian Berry

    
    

    Member