Adhikari (Migration)

[2024] AATA 3059

Adhikari (Migration) [2024] AATA 3059 (12 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jyoti Adhikari

REPRESENTATIVE:  Mr Nabin Shahi (MARN: 0957944)

CASE NUMBER:  2118484

HOME AFFAIRS REFERENCE(S):          BCC2021/469679

MEMBER:George Hallwood

DATE:12 August 2024

PLACE OF DECISION:  Adelaide

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 12 August 2024 at 11:26am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – specified qualification completed within six months before application made – degree completed more than six months before and diploma completed within six months – legislative amendment that the ‘applicant’ must satisfy the requirement, not the applicant’s ‘study for the qualification’ – earlier degree study coupled with later diploma study to satisfy requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC(6), Schedule 2, cl 485.231(3)

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 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 29 March 2021. 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 the criteria in Subdivision 485.23.

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 Diploma of Community Services qualification meets cl 485.231 of the Regulations as the course work was not at the minimum level or approved qualification in the relevant instrument.

4. This hearing was scheduled for: 22 May 2024 and postponed on medical grounds; 4 June 2024 and postponed on medical grounds; 18 June 2024 and the matter was dismissed as the applicant failed to appear at the scheduled hearing, then reinstated on 15 July 2024; and, 31 July 2024 which is the hearing that has led to this decision.

5. The applicant appeared before the Tribunal on 31 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with as needed assistance of an interpreter in the Nepali and English languages.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

   Does cl 485.231 apply to the applicant?

9. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

   Does the applicant hold a specified qualification?

10. 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 LIN 23/023 which replaced the repealed instrument IMMI 13/013 while maintaining the arrangements previously in place. In this case both instruments specify for the purposes of subclause 485.231(1) qualifications that are as a result of study undertaken at Australian Qualification Framework (AQF) level seven or higher (ie Bachelor Degree, Masters Degree, Doctoral Degree of various types set out in the instruments).

11. In this case, the applicant holds an AQF Bachelor of Nursing (Post Registration), completed on 4 December 2017 and conferred on 12 April 2018, which is a qualification specified in that instrument.

12. The applicant also holds: an AQF Advanced Diploma of Business completed on 11 February 2019 and conferred 28 February 2019; and, an AQF Diploma Community Services issued on 26 February 2021 - neither of which are AQF level seven or higher qualifications as set out in the instrument.

13. Therefore, as a result of the AQF Bachelor of Nursing, the applicant satisfies cl 485.231(1).

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

14. Clause 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 LIN 23/021 which repealed the instrument IMMI 13/031.

15. In this case the qualification that has met cl 485.231(1) is the applicant’s qualification Bachelor of Nursing (Post Registration) awarded by Flinders University, an educational institution specified in that instrument being registered on the Commonwealth Register of Institutions and Courses for Overseas Students established by section 14A of the Education Services for Overseas Students Act 2000; and one that offers courses at the bachelor’s degree level and above.

16. Therefore, as a result of the AQF Bachelor of Nursing, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

17. 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.

18. 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.

19. ‘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.

20. On 26 February 2021 the applicant was issued a Diploma Community Services by Southern Cross Education Services.

21. For applications made on or after 23 March 2013 and before 19 September 2020, the applicant’s ‘study for the qualification or qualifications’ must have satisfied the Australian study requirement in the 6 months ending immediately before the day the application was made.[1] The ‘study for the qualification or qualifications’ in cl 485.231(3) refers to a specified qualification conferred or awarded by a specified educational institution for the purposes of cl 485.231(1) and (2).

    [1] cl 485.231(3) as amended by SLI 2013, No 33.

22. For applications made on or after 19 September 2020 and before 1 July 2022, the ‘applicant’ must relevantly have satisfied the Australian study requirement in the 6 months immediately before the day the application was made.[2] The amendment requiring the ‘applicant’, rather than the applicant’s ‘study for the qualification or qualifications’, to meet the Australian study requirement suggests that it would be possible for this criterion to be met on the basis of qualifications other than a specified qualification conferred or awarded by a specified educational institution referred to in cl 485.231(1) and (2).[3]

    [2] cl 485.231(3) substituted by F2020L01181 for applications made on or after 19 September 2020.

    [3] According to p 14 of the Explanatory Statement to F2022L00845, F2020L01181 had the unintended consequence that the Australian Study Requirement could be satisfied in the relevant period by completing a diploma or trade qualification which, coupled with a Bachelor Degree or post-graduate degree completed at an earlier time, could allow an applicant to satisfy the criteria for a Subclass 485 visa in the Post-Study Work stream.

23. The Diploma Community Services awarded to the applicant meets the definition of ‘diploma’ in reg 2.26AC(6) as it was awarded by a body under the AQF. The course was one that was one provided by a training institution registered in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) 02934D - reg 1.03.

24. The Advanced Diploma of Business awarded to the applicant meets the definition of ‘diploma’ in reg 2.26AC(6) as it was awarded by a body under the AQF. The course was one that was one provided by a training institution registered in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) 02915G - reg 1.03.

25. At the time of application Australian Study Requirement could be satisfied in the relevant period by completing a diploma or trade qualification which, coupled with a Bachelor Degree or post-graduate degree completed at an earlier time, could allow an applicant to satisfy the criteria for a Subclass 485 visa in the Post-Study Work stream.

26. In this case the Bachelor of Nursing (29 February 2016 to 12 April 2017), coupled with the Advanced Diploma of Business (12 February 2018 to 11 February 2019), and the Diploma of Community Services (16 May 2019 to 26 February 2021) satisfy the Tribunal that Ms Adhikari 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 as defined: see reg 1.03;

    ·     that were completed: see reg 1.15F(2), 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 for which all instruction was conducted in English.

27. Based on Departmental records the Tribunal is also satisfied that Ms Adhikari undertook the required study while in Australia as the holder of subclass 573 and subclass 500 temporary study visas authorising the applicant to study in Australia.

28. The Australian study requirement was satisfied in the 6 months immediately before the day the application was made.

29. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

    CONCLUDING PARAGRAPH

31. On the basis of the above findings, the Tribunal finds that the applicant meets cl 485. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. 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.

    George Hallwood
    Member