Kang (Migration)

[2024] AATA 287

Kang (Migration) [2024] AATA 287 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Eunji Kang

REPRESENTATIVE:  Mr Namho Kim (MARN: 1683521)

CASE NUMBER:  2202305

HOME AFFAIRS REFERENCE(S):          BCC2021/1179202

MEMBER:Warren Stooke AM

DATE:19 January 2024

PLACE OF DECISION:  Melbourne

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 19 January 2024 at 2:01pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post Study Work stream – Australian study requirement – Bachelor of Business (Accounting) – course completion date – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 2022 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 2 June 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 on the basis that the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because on 1 October 2021 the applicant provided a letter of completion and/or academic transcripts for Bachelor of Business with Major(s) ACCOUNTING qualification obtained from Victoria University. The letter of completion stated the applicant completed their course on 10 June 2021. This confirmed that the course was completed after the application was made. Therefore, the applicant’s Bachelor of Business with Major(s) ACCOUNTING qualification cannot be used to satisfy the study requirement for this visa.

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

5. On the basis of new information submitted to the Tribunal concerning the applicant’s course completion date from the Victoria University dated 16 February 2022, the Tribunal has decided to undertake a review of the application on the papers without recourse to a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. If cl 485.231 applies, the applicant must hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, and 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)).

8. The applicant was granted a Bridging Visa A on 2 June 2021 that became active on 6 June 2021 at the end of the applicant’s Student Temporary Visa.

9. The applicant provided evidence of health insurance with Medibank Private that commenced on 25 May 2021.

10. The applicant provided evidence of undertaking an IELTS English language test on 23 September 2019 with an overall score of 6.5.

11. The applicant provided evidence of a National Police Certificate dated 2 June 2021 for a name check only that identified ‘no disclosable court outcomes’.

12. On 16 February 2022, the applicant was provided with an amended confirmation of the applicant’s course completion by the Pro Vice Chancellor - Students, which advised the following new information for the consideration of the Tribunal:

    “Congratulations! I am pleased to confirm that your course completion has been assessed and below is your Statement of Completion.

    This is to certify that EUNJI KANG, born on 15 January 1991, has satisfied the requirements for the following:
    Award: Bachelor of Business with Major(s) ACCOUNTING
    CRICOS Course Code: 092944A
    VU Campus: CITY FLINDERS
    Course Commencement date: 25/02/2019
    Course End Date: 26/04/2021
    Course Completion Date: 26/04/2021

    The course was delivered on a full-time basis in Australia and did not have any distance learning study components. All examinations and assessments were conducted in English.
    Your award will be conferred at a forthcoming University Graduation ceremony. Information about the Graduation Ceremony and how to obtain your Testamur (Certificate) will be sent to you in due course.

    For more information please refer to [ and if you have any queries relating to this information please use your preferred method of contact as listed below. “

13. The applicant provided evidence that the course was completed on 26 April 2021 and was conferred by the Victoria University on 5 August 2021.

    Does the applicant hold a specified qualification?

14. 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 IMMI 13/013 of the Register of Instruments - Skilled Visas. In this case, the applicant holds a Bachelor of Business (Accounting) from Victoria University, which is a qualification specified in that instrument.

15. Therefore the applicant satisfies cl 485.231(1).

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

16. 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 IMMI 14/010  of the Register of Instruments - Skilled Visas.

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

18. Therefore the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

19. 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.

20. 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.

21. ‘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 of the Register of Instruments - Skilled Visas.

22. The Tribunal is satisfied that the applicant completed a Bachelor of Business (Accounting) at Victoria University (as defined: see reg 2.26AC(6)) and that the course was a registered course of study (as defined: see reg 1.03) with CRICOS Course Code: 092944A.

23. Further, the Tribunal is satisfied that the course of study was completed (as defined in reg 1.15F(2) in a total of at least 16 calendar months and as a result of more than 2 years of academic study; with all instruction being conducted in English, whilst holding a visa authorising study.

24. The Tribunal is satisfied that the applicant satisfied the Australian study requirement in the 6 months immediately before the day the application was made on 2 June 2021, with the course completion date of 26 April 2021.

25. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application and that the applicant was not outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

26. Therefore the applicant satisfies cl 485.231(3).

27. 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

28. 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.

    Warren Stooke AM
    Member