Chan (Migration)

[2022] AATA 4870

Chan (Migration) [2022] AATA 4870 (18 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ching Wun Chan

REPRESENTATIVE:  Mr Stanley  Chan (MARN: 0430097)

CASE NUMBER:  2106276

HOME AFFAIRS REFERENCE(S):          BCC2020/1934945

MEMBER:Alan McMurran

DATE:18 November 2022

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 18 November 2022 at 6:25pm

CATCHWORDS  
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completion date – system issue – PRISM record – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 360 
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 lodged 11 May 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 29 April 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 21 July 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.

3. In this case, the applicant, Ms Ching Wun Chan, who is a citizen of the People’s Republic of China, is seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231.

4. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations. This was because on the information before the delegate, the applicant had not completed the necessary coursework in the 6 months ending immediately before the day the application was made on 21 July 2020. The delegate found that the course provider, the Australian National University (“ANU”), had provided a letter dated 13 July 2020 showing the applicant had completed the necessary coursework on 27 July 2020, which was a date after the day on which the letter had been issued, and a date after the application was made.

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

6. Section 360(2)(a) of the Act provides that the Tribunal may decide the review in the applicant’s favour on the basis of the material before it, and without a hearing. In this instance, the Tribunal considers that the correct and preferable decision is available in the applicant’s favour, on the evidence now before the Tribunal. Accordingly, the Tribunal has proceeded to finalise this merits’ review without a hearing.

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, 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?

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 a Bachelor of Accounting degree from the ANU, which is a qualification specified in that instrument.

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

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

11. 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 IMMI13/031.

12. In this case, the applicant’s qualification was conferred or awarded by the ANU which is an educational institution specified in that instrument.

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 6 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 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.

16. ‘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.

17. On 26 October 2022, in response to a request from the Tribunal, the ANU provided a letter stating that the applicant commenced a program of study on 25 February 2019, and “successfully completed the requirements for the bachelor of accounting on 27 July 2020”.

18. The accompanying email from student services at the University, however, explains that: “The discrepancies in dates can be blamed on a system issue. The completion letters are generated in our Student Administration System (SAS) and depending on when a student requests the letter, the date can change. I have run a completion letter for Ms. Ching Wun Chan u6212500 today and the date is 27 July 2020.”

19. On 7 November 2022, the Tribunal sent an invitation to the applicant under section 359A of the Act, providing particulars that the University’s letter confirmed completion of the relevant course occurred after the date of the application. In those circumstances, the applicant would not meet the requirement to have completed the course within the six-month period before lodgement.

20. On 18 November 2022, the applicant responded, attaching a copy of an email from the University sent to the applicant on 5 July 2021, advising her that a previous completion letter received was in error and an automated response set up by the graduation office, and that the “result released date” for completion of the applicant’s course was in fact on 9 July 2020, and not 27 July 2020 as previously advised.

21. The applicant further submitted a copy of the University “Completion Letter” dated 10 May 2021, which states: “The student commenced their program on February 25, 2019 and successfully completed the requirements for the bachelor of accounting on July 9, 2020”. This letter was provided following the Department’s decision which had already been made.

22. The most recent information available to the Tribunal from the University on 26 October 2022 has confirmed that there are “discrepancies in dates” blamed on a “system issue” at the University. It states the best the current information can provide is that as stated in the recent email to the Tribunal: “No matter the date differences, I can confirm that Ms. Ching Wun Chan u6212500 did earn the Bachelor of Accounting from the Australian University.” This response in the Tribunal’s view appears to concede that there may be inaccuracy in the recent information provided by the University and which completion date might be correct.

23. Turning to the applicant’s response to the Tribunal request for information, the applicant relies upon her Statutory Declaration made 17 November 2022 in which she declares she has received a completion letter on 13 July 2020, incorrectly recording a completion date after the date of that letter on 27 July 2020. The applicant then states that she received a “third completion letter” on 10 May 2021, following the Department’s decision, indicating successful completion on 9 July 2020, being the date the applicant’s result was released and confirming she had passed all courses. As noted, a copy of the University’s completion letter dated 10 May 2021, confirming completion on 9 July 2020, has been produced. It is in identical terms to the letter recently provided to the Tribunal on 26 October 2022, save for the date of completion, which the University has changed from 9 July 2020 to 27 July 2020.

24. The date is of course critical because if it were the fact the course was completed on 27 July 2020, the applicant had filed her application before “completion” and could not succeed.

25. The Tribunal has taken into account the conflicting information. The Tribunal notes that according to the University’s concession in the email accompanying the most recent completion letter, there is a ‘system error’ in producing completion letters which has resulted in “discrepancies in dates”. It appears however from the information available, that the more correct date for completion by the applicant was on 9 July 2020, as previously indicated in the University’s letter sent to her on 10 May 2021. That letter was originated by the Deputy Manager, Student Services. The most recent response comes from the Registrar, Student Administration. There is no information before the Tribunal to disclose which of those authorised signatories might be the more “correct” authority.

26. Furthermore, a check of the formal PRISM record for the applicant shows that her enrolled course for the Bachelor of Accounting degree at ANU, commenced on 1 December 2019 and ended on 30 June 2020, which date aligns with the formal completion date advice of 9 July 2020. It also appears to the Tribunal that it is unlikely the applicant would have neglected to note that at the time of lodging the application she had evidence to the effect her course had not at that time been completed.

27. The Tribunal attributes significant weight to the PRISM[1] record which maintains information about a student’s visa application course enrolment and relevant information stored with the registered education provider, and about their courses.

    [1] acronym for ‘Provider Registration and International Student Management System’.

28. After considering the above information and discrepancies, the Tribunal finds on the available information that it accepts the applicant’s submission based on the earlier completion letter dated 10 May 2021, which asserts the course requirements were met on 9 July 2020.

29. The current University letter generated more than 2 years later in October 2022, provides no assurance that it has not been affected by the “discrepancies in dates” which the University has acknowledged. For these reasons, the Tribunal attributes little weight to the most recent statement as being accurate and prefers the evidence from the applicant herself supported by the university’s earlier information, and information separately available via PRISM records, showing completion of her course at 30 June 2020, and not a month later on 27 July 2020. The only evidence the course was completed after lodgement (27 July 2020) is contradicted and is not supported by the weight of other objective material available. The Tribunal rejects therefore the date of 27 July 2020 as the actual ‘completion date’.

30. Given the circumstances, the Tribunal finds that the applicant met the qualification requirement in the 6 months immediately before she made the application for the visa.

31. The Tribunal further finds that the course at the University was a registered course as defined in regulation 1.03. The Tribunal finds on the available information that the course was completed in a total of at least 16 calendar months, as a result of at least 2 academic years study and for which all instruction was conducted in English. At all relevant times, the information available from the Department shows the applicant held a substantive visa authorising her study.

    Summary

32. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

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

34. 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

35. 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.

    Alan McMurran
    Member