Khan (Migration) - [2025] ARTA 436

KHAN (MIGRATION) [2025] ARTA 436 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mr Aman Ullah Khan
Mrs Madiha Jalal
Miss Aroosh Khan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2217165

Tribunal:General Member J Murphy
Place:Melbourne
Date: 12 March 2025
Decision:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations.

Statement made on 12 March 2025 at 12:53pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – completed qualification – courses completed within 6 months before visa application – corrected Letter of Completion – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221; rr 1.03, 1.15, 2.26
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 7 November 2022 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 6 April 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 visas because the first named applicant (the applicant) did not satisfy cl 485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed their qualification used to satisfy the Australian study requirement in the six months immediately before the day the visa application was made.
The applicants were 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 is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes 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(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within six 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 485.221(b)).
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 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; 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.
‘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 set out in the delegate’s decision, the applicant relied on having completed a Bachelor of Business (Accounting) at the Canterbury Institute of Management (CIM), commenced 10 August 2020, and completed on 20 September 2021. The delegate noted that the applicant provided a Letter of Completion issued by the CIM that confirmed his completion date as 20 September 2021.
The delegate noted that the applicant lodged this visa application on 6 April 2022, and as stated by the delegate in their refusal decision, the delegate did not consider then that this qualification was completed within the period of six months immediately before the day the application was made.
On review, the applicant provided to the Tribunal a corrected Letter of Completion issued by the CIM confirming a completion date of 8 October 2021. The applicant further provided an Academic Transcript issued by the CIM that corroborates 8 October 2021 as the applicant’s completion date. The Tribunal accepts the applicant’s documentary evidence in this regard and finds that the applicant’ revised completion date as stated by the CIM, is 8 October 2021.
The Tribunal finds that this revised completion date is within the six months immediately before the day the visa application was made.
Based on the documentary evidence contained on file, the Tribunal also makes the following findings:
·The qualification is a registered course, completed at a CRICOS registered institution.
·The qualification was completed in a total of at least 16 calendar months and as the result of at least two academic years of study.
·The completion certificate issued from the education provider confirms that the qualification was conducted in English.
·In addition, Departmental checks confirm the applicant held the relevant student visa authorising study at the relevant times.
As a result, 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 applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named 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: Mr Owais Shaheen