Lee (Migration)

[2021] AATA 2565

Lee (Migration) [2021] AATA 2565 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jongmin Lee

CASE NUMBER:  1909153

HOME AFFAIRS REFERENCE(S):          BCC2018/6201178

MEMBER:Wan Shum

DATE:31 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 31 May 2021 at 10:51am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – letter of completion – completion date – application lodged one day late – no discretion – decision under review affirmed

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 12 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 16 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Graduate Work stream.

3. The delegate refused to grant the visa finding that the applicant did not meet the requirements of cl.485.231 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 28 May 2021 by video using MS Teams to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. One of the requirements is that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl.485.221).

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.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).

9. On the application form, the applicant declared that he completed a Diploma of Accounting at TAFE and a Bachelor of Business and Commerce at Western Sydney University.

10. The applicant provided a letter of completion for the Diploma of Accounting from TAFE NSW which gives a completion date of 19 February 2014. He also submitted a letter of completion for the Bachelor of Business and Commerce from Western Sydney University, which states that he met the course requirements on 14 July 2018 and graduated on 26 September 2018.

11. During the hearing, the applicant explained that he had made the application for the visa himself and had understood that he needed to apply within 6 months of obtaining his graduation certificate. That is why he lodged the application two days late.

12. The Tribunal explained that the relevant date was the date he met the requirements for the award of the qualification which was not necessarily going to be the same as the date of graduation. The applicant said he understood and that he was planning to return to Korea.

13. The Tribunal appreciates that there was confusion with the date by which the application for the Subclass 485 visa needed to be made, and that it would differ depending on whether the last date for the application was counted from the date the student met the course requirements or from the date of graduation. It also notes that in this case, the applicant lodged the application one day later than he ought to have. But the Tribunal does not have any power to waive the requirement or exercise any discretion. On the evidence before it, the Tribunal finds that the applicant completed his Bachelor study on 14 July 2018. The application for the visa was made on 16 January 2019, which means that he did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application. He therefore does not meet the requirements of cl 485.221.

14. Because of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Wan Shum
    Member