Davies (Migration) - [2025] ARTA 296

DAVIES (MIGRATION) [2025] ARTA 296 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Simone Chanel Davies
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2301514

Tribunal:General Member J Murphy
Place:Melbourne
Date: 4 March 2025
Decision:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations

Statement made on 04 March 2025 at 2:44pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – Cert III and diploma not specified qualifications – consideration with respect to different stream – honest mistake and substantial compliance – considered with respect to graduate stream – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.231(1)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2023 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 9 June 2022. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
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 applicant’s qualification used to satisfy the Australian study requirement, is one of the eligible qualifications for the Post-Study Work stream.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant applied for a Subclass 485 visa and at the time of application sought 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 six 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?
Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. In this case, the applicant holds a Certificate III and Diploma of Early Childhood Education and Care which are not qualifications specified in that instrument.
As set out in the primary decision record, this is the same finding made by the delegate which resulted in the refusal. The Tribunal agrees with the finding made by the delegate on the above basis and accordingly finds that cl 485.231(1) is not met.
Can the Tribunal make a finding with respect to a different stream?
The Federal Circuit Court remitted by consent the matters of BRG368/2017 and SYG3039/2016 and in each matter noted that the Tribunal committed jurisdictional error in finding that it was confined to considering the applicant’s application for a Subclass 485 visa only against the stream nominated in the visa application (the Graduate Work stream), in circumstances where the applicant substantially complied with the visa application form for the intended stream (the Post-Study Work stream).
Although it has not been judicially considered, consistent with the reasons for remittal endorsed by the Court in these matters, it appears open to the Tribunal to then consider the reverse, that is, an applicant who has selected the Post-Study Work stream against the Graduate Work stream. This is in circumstances where the Tribunal is satisfied that the applicant intended to apply for that stream, substantially complied with the visa application form and met the Schedule 1 requirements for that stream.
On review, the Tribunal received written submissions from the applicant stating that she had applied under the wrong stream but that it was an honest mistake with no intention to deceive the Department. The Tribunal accepts the applicant’s submissions in this regard.
The issue is now whether the applicant meets the requirements for the grant of a Subclass 485 visa (Graduate Stream) as set out in cl.485.221 of Schedule 2 to the Regulations.
This requires that the applicant must have satisfied the ‘Australian study requirement’ in the six months immediately before the day the visa application was made (cl 485.221).
The issue in the present case is whether the applicant meets this requirement.
Does the applicant meet the Australian study requirement?
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; and
·that were completed in a total of at least 16 calendar months; and
·that were completed as a result of a total of at least two academic years study; and
·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.
‘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 or courses registered under the Education Services for Overseas Students Act 2000 (Cth).
As evidenced by the applicant’s certificates of completion submitted to the Tribunal on review, the Tribunal is satisfied that the applicant has completed the following qualifications:
·Certificate III in Early Childhood Education and Care, from Melbourne City Institute of Education, commenced 14 April 2020 and completed 7 May 2021; and
·Diploma of Early Childhood Education and Care, from Melbourne City Institute of Education, commenced 10 May 2021 and completed 6 May 2022.
Clause 485.221 requires the qualification to be relied on to satisfy the Australian study requirement be completed within six months immediately before the day the application is made. The Tribunal finds these qualifications were completed within six months immediately before the day the application was made as the applicant’s final qualification was completed on 6 May 2022 and the applicant applied for this visa on 9 June 2022.
The qualification further satisfies the Australian study requirement as they are CRICOS registered courses (CHC50113 and CHC30113) completed at a CRICOS registered institution (03024A).
The completion letter issued from the education provider confirms the qualifications were completed in a total of at least 16 calendar months and as the result of at least two academic years of study.
The completion letter issued from the education provider further confirms that the qualifications were conducted in English.
In addition, Departmental checks confirm the applicant held the relevant student visa authorising study at the relevant time.
The Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application. Therefore, the applicant meets cl 485.221.
Based on the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations.
Date(s) of hearing:
Representative for the Applicant: Ms Diedré Louise Henriss