Lee (Migration) - [2024] AATA 1013

Lee (Migration) [2024] AATA 1013 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Hyunyoung Lee
REPRESENTATIVE:  Ms Sally Hunt
CASE NUMBER:  2116629
HOME AFFAIRS REFERENCE(S):          BCC2020/1942723
MEMBER:Alan McMurran
DATE:8 April 2024
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 criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations; and
·cl 485.222 of Schedule 2 to the Regulations

Statement made on 08 April 2024 at 10:03am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Accountant (General) – Australian study requirement – Master of Commerce – date of completion for the course requirements – notification that results ‘have been approved by the university’ – formal completion letter – course requirements completed ‘as of’ that date – qualification ‘closely related’ to nominated occupation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Ali v MICMSMA [2021] FCA 1311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 14 November 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, Miss Hyunyoung Lee, a 34 year-old citizen and national of the Republic of Korea (South), applied for the visa on 22 July 2020. 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. There are no additional family members combined with this application. All criteria must be met for the application to progress.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.221 of Schedule 2 to the Regulations, because the delegate found that the applicant had completed the course of study relied upon by her after the visa application was made, and not beforehand, as the regulation requires.
The applicant was represented in relation to the review by her legal representative, who has made helpful and comprehensive submissions. The Tribunal was able to make a decision on the papers and without the need to invite the applicant to a hearing.[1]
[1] Section 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Tribunal process
On 14 November 2021, with her application, the applicant submitted her written statement, referred to below in these reasons. The application form contained all required information and details of the applicant’s chosen occupation as an Accountant (General) [2] and skill assessment. The applicant provided a copy of the delegate’s decision.
[2] ANZSCO 221111
On 6 December 2023, the application was constituted to a Member for review.
On 15 January 2024, the Tribunal invited the applicant to provide information for a verification check as to her course completion.
On 29 February 2024, the Tribunal sent a request to the registered course provider, The University of Sydney, for a response.
On 8 March 2024, the university responded and confirmed that its completion letter was “genuine and accurate”.
On 11 March 2024, the Tribunal invited the applicant to comment on the university’s response. The Tribunal’s letter informed the applicant that if it relied upon the university’s information in its completion letter, that would be the reason or part of the reason for affirming the decision under review.[3] The applicant was granted an extension of time to respond.
[3] S 359A of the Act
On 2 April 2024, the applicant’s newly appointed representative was registered as the Tribunal’s point of contact. The representative provided a detailed submission as prepared by her, and which was emailed and received by the Tribunal within time on 28 March 2024, with two attachments.
The Tribunal makes reference below to this information in consideration of the evidence upon review and for this decision.
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 include cl 485.221 and cl 485.222 of Schedule 2 to the Regulations.
These sub-clauses require 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) and
· secondly, unless limited circumstances apply, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222(1)).
The issue in the present case is whether the applicant meets those requirements.
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 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).[4]
[4] LIN19/085.
Findings
The Tribunal has reviewed all the available information. This includes the course summary produced by the University of Sydney, and the information as to completion by the applicant.
The Tribunal finds on the available evidence that the applicant met the following qualification requirements for the award of Master of Commerce, specialising in Accounting. The Tribunal finds that the qualification was the result of:
·a registered course (as defined by reg 1.03);
·completed in a total of at least 16 calendar months (as defined by reg 1.15F(2));
·as a result of at least 2 academic years study where academic year is defined[5] as at least a total of 46 weeks, being the duration of the course or courses[6];
·for which all instruction was conducted in English; and
·whilst holding a visa authorising study.
[5] Reg 1.03 of the Regulations
[6] LIN19/085 Part 2 Definition [ at 6]
The remaining issue, being the issue which troubled the delegate, was whether the applicant had completed a degree, diploma or other trade qualification (as defined: see reg 2.26AC(6)) in the 6 months immediately before the application was made.
Did the applicant ‘complete’ the course within the relevant period before lodgment?
The applicant lodged her visa application on 22 July 2020. This means she was required to have completed her course with the course provider within 6 months before the day of lodgement, which day is not included [7]. The 6 month period commenced on Tuesday, 21 January 2020, ending on 21 July 2020.
[7] Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2206 per Kendall J at [51].
The applicant’s statement notes as follows:
“My visa was refused on 28 October 2021; the decision record reads that the course was completed after the application was made. The university notified me that I had completed the course on 8 July 2020 when the final results were issued and met academic requirements for the degree. I will provide additional documents if needed.”
The applicant is referring to the applicant’s notification of her course as recorded by the university. The notification from the university to the applicant as submitted with the documents for this review is dated 7 July 2020. The notice records that the results for Semester 1, 2020 “have been approved by the university”. The notification was emailed to the applicant on 8 July 2020 from the university’s administration.
The Tribunal finds that the ordinary meaning of the word “approved” in its literal understanding and in context is that the applicant has successfully completed the subjects identified in the letter.
As the university’s record states, the results as reported “only appear” if they have been approved. The report records the last two subjects completed by the applicant for the registered course in which she was enrolled. The completion of those two subjects occurred in Semester 1, 2020 of the university’s academic year.
All other subjects for the course had been successfully completed by the applicant as described in the applicant’s produced academic transcript[8] from the university, and during the period of enrolment from Semester 1 2018, through to end Semester 1 2020.
[8] Described by the university as its “official academic record”. The record is not dated.
The Tribunal finds it is satisfied on this information that the applicant was attending to all course requirements for the Award of the Masters’ Degree in the period from Semester 1 2018 to Semester 1 2020, finishing on 7 July 2020 at the time of notification.
Ordinarily, this should be sufficient to dispose of the application on the basis the applicant had met the course requirements as at 7 July 2020. The university however issued a formal letter dated 25 July 2020, 3 days after lodgement of the application for the visa, stating that:
“This is to confirm that Hyunyoung Lee, student number……….has completed the requirements for the below degree at the University of Sydney as of 24 July 2020.”(emphasis added).
The university responded to the Tribunal’s verification letter on 8 March 2024 stating that the letter issued on 25 July 2020 was “genuine and accurate”. Without more, the delegate was satisfied that this notification supplanted the notification of results published earlier on 7 July 2020, because it was more formal in a sense, and not just a report for two exam results.
The applicant submits that the Tribunal should place a different interpretation on the meaning of ‘completion’, distinguishing the two ostensibly ambiguous statements from the university. The applicant claims the “completion date” is better defined according to regulation 1.15F(2), as meaning completion of a relevant course of study by reference to the point in time when all the applicant’s student efforts have been assessed to be satisfactory. The applicant asserts that the earlier date on 7 July 2020 notified to the applicant is the correct date as to when the course was actually ‘completed’ and meets the legislated definition.
The Tribunal has considered the two university notifications. The Tribunal finds that the 7 July notification confirms that the applicant successfully passed her last two subjects which were “approved” by that day. It is not a “completion letter” as such. The notification dated 25 July 2020 is a “completion letter”, informing the applicant that she has “completed the requirements as of 24 July 2020.”
Importantly, the wording used on 25 July 2020 does not state the actual date when the requirements were met. To be specific, the letter ought to have said that the course was completed “on” not “as of”. The latter phrase means completion could have occurred any time before 25 July 2020, not necessarily on that very day.
The Tribunal accepts the careful and thoughtful submission by the representative in that regard, which includes the following:
“I submit that despite the date given by the University of Sydney in its letter, the available documentary evidence in this case clearly supports a finding by the tribunal that Miss Lee ‘completed’ her relevant degree on 7 July 2020, when Miss Lee’s satisfactory results in her final two subjects were published, (or at least on 8 July 2020, when Miss Lee received an email from the university including these published results).”
The Tribunal has further noted the authorities relied upon in the submission. The opinion of McKerracher J in Ali v MICMSMA [2021] FCA 1311 (27 October 2021) ( “Ali’s case”) is compelling and persuasive. It is authority for the proposition that in order for the applicant to meet the requirement in this case, she needed to demonstrate that she had completed her course of study prior to midnight on 21 July 2020.[9] The Tribunal finds that the university provided that confirmation by notice sent by email on 8 July 2020, and which date is well within the statutory temporal period for lodgement of her visa application.
[9] Ali’s case at [11]
The Tribunal accepts that the date on which the institution finalises the results for the relevant course is the date when the academic requirements have been met. That is when the last academic hurdle has been overcome and all subjects successfully passed. The applicant can do nothing further to ‘complete’ the course requirements. [10]
[10] See also Sapkota v MIAC [2012] FCA 981 at [26], which was followed in Ali’s case.
The university letter of 25 July 2020 does not state the date of completion. It states only that the course has been completed and the academic requirements met “as of” that date.
It also notes the last Semester for the applicant, who was enrolled full-time, ended on 21 June 2020. Notification of successful outcomes for that Semester and the related two subjects occurred on 7 July 2020, received by the applicant by email a day later. There was nothing further the applicant could have done after 7 July 2020 to ‘complete’ the course. The university has confirmed the letter of 25 July 2020 was “genuine and accurate”, and so it was as to its content. Perhaps the author was more concerned to ensure there was no doubt as to its authenticity, that it was not bogus or fraudulent, but was not focussed on the critical date of completion for the course requirements, which it did not address.
In any event, as submitted by the applicant, it is a factual matter for the Tribunal to determine on the available information and documents.
In this instance, the Tribunal finds on the available information that the correct date for completion of the academic requirements was 7 July 2020, not 25 July 2020. Therefore at the time of lodgement, 22 July 2020, the applicant met the requirement.
The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant meets cl 485.221.
Is the qualification ‘closely related’ to the nominated occupation?
In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation, unless the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations[11]. In this case, the visa application was not made during that period.
[11] “…in the period starting 1 July 2022…” see par 1229(3)(ka) of Schedule 1 to the Regulations.
An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (regs 1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument LIN 19/051.
In this case, the applicant nominated the occupation of Accountant (General) which is a skilled occupation specified in the relevant instrument[12]
[12] LIN19/051.
The Tribunal finds that the applicant’s course of study for a Masters’ Degree, specialising in Accounting, and aligned with the subjects reported by the university as successfully completed is ‘clearly closely’ related to the applicant’s chosen occupation. This is further supported by the applicant’s accreditation as a CPA.
As the qualification used to satisfy the Australian study requirement in this case is closely related to the nominated skilled occupation, the applicant meets cl 485.222.
Conclusion
On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and 485.222.
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; and
·cl 485.222 of Schedule 2 to the Regulations.
Alan McMurran
Member