Kang (Migration)

[2019] AATA 1087

Kang (Migration) [2019] AATA 1087 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Byeori Kang

CASE NUMBER:  1909096

HOME AFFAIRS REFERENCE(S):           BCC2018/6004932

MEMBER:Wan Shum

DATE:23 May 2019

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 23 May 2019 at 3:29pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Temporary Graduate (Post-Study Work) stream – Australian study requirement – completion letter for Bachelor degree provided –  decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.231, r 1.15F

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 10 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 January 2019. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa because she was not satisfied on the information provided that the applicant had satisfied the Australian study requirement in cl.485.231 of Schedule 2 to the Regulations.

4. The applicant sought review of that decision and provided a completion letter from her education provider. The Tribunal has contacted the education provider who confirmed that the letter was issued by them. As the Tribunal is able to make a favourable finding on this new information, it was unnecessary to invite the applicant to a hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Temporary Graduate (Post-Study Work) stream. This includes a requirement that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.231(3)). In addition, the applicant must hold a qualification of a kind specified by the Minister in an instrument in writing for cl.485.231(1), and each qualification must have been conferred or awarded by an educational institution specified by the Minister in an instrument in writing for cl.485.231(2).

6. Under r.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 2 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.

7. ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (IMMI 09/040).

8. The applicant indicated on the visa application form that she had completed the following study in Australia: Advanced Diploma of Hospitality Management from 23 September 2013 to 4 September 2015; Bachelor of Commerce at Torrens University Australia from 6 June 2016 to 9 December 2018.

9. The applicant provided her academic transcript for her Bachelor degree studies which gave the course start date but not a completion date. The Department of Immigration requested a completion letter from the applicant, who provided a reference letter from the Restaurant Operations Manager of William Blue Dining in response. This letter made reference to her studies but did not give a completion date. On the information before it, the delegate was not satisfied that the applicant met the Australian study requirement in the 6 months before the visa application was made.

10. On review, a completion letter from Torrens University dated 10 April 2019 was submitted which states that the applicant completed her studies on 9 December 2018 and met the course requirements on 19 December 2018.

11. The Tribunal contacted the University and was provided with a response from the Records and Results Coordinator on 13 May 2019, confirming that the letter was true and genuine.

12. Based on this additional information, the Tribunal finds that the applicant was found by the education provider to have met the course requirements on 19 December 2018. On the information contained in the letter, the Tribunal further finds that the applicant commenced the Bachelor of Commerce course in June 2016 and completed the course on 9 December 2018. This is a period which exceeds 16 calendar months. It finds that the course is a registered course, being a course of education provided by an institution that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. Having regard to the CRICOS website, the Tribunal is satisfied that the applicant’s course was registered for 156 weeks which is at least 2 academic years as specified. The Tribunal is also satisfied the course was conducted in English. The applicant’s movement records confirm she held student and associated bridging visas throughout this period of study, which means she was authorised to study in Australia while undertaking the course. Given these findings, the applicant satisfies the Australian study requirement in r.1.15F.

13. As the visa application was made on 7 January 2019 and the applicant satisfied the Australian study requirement on 19 December 2018, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.231(3). The Tribunal further finds that the university is an eligible educational institution and the Bachelor degree is a qualification that has been specified by the Minister in the relevant instruments for the purposes of cl.485.231(1) and (2). She therefore satisfies all the requirements of cl.485.231.

14. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. 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.

    Wan Shum
    Member