Leong (Migration)

[2020] AATA 3978

Leong (Migration) [2020] AATA 3978 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Audrey Mun Ying Leong

CASE NUMBER:  1836867

HOME AFFAIRS REFERENCE(S):          BCC2018/3576284

MEMBER:Warren Stooke AM

DATE:23 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 July 2020 at 9:59am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – course completed in the previous 6 months – applicant’s communication with education provider to clarify completion of studies – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231; rr 1.03, 1.15, 2.26

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 28 November 2018 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 20 September 2018. 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 (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 cl.485.231

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 the applicant had applied for the 485 visa more than 6 months after completing a Bachelor of Professional Accounting.

4. The applicant appeared before the Tribunal on 8 July 2020 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. Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

7. The applicant is a 25 year old from Malaysia, who provided evidence that she completed a Bachelor of Professional Accounting at the Holmes Institute on 12 March 2018, which was confirmed in the transcript correspondence from the Holmes Institute, dated 27 March 2018.

8. The applicant provided oral evidence that on 11 March 2018 she emailed the director concerning whether she had passed her last subject and she was invited to campus on 12 March 2018 to discuss the matter.

9. The applicant claimed that she completed her studies on 16 March 2018, as she was missing one unit of study on 15 March 2018 and she was advised that the matter would be processed. As the amended results were not provided, the applicant provided evidence that she waited until 27 March 2018 to obtain a new transcript.

10. The Tribunal asked the applicant whether the reissue date was 16 March 2018 and the applicant stated: “Yes. Correct.”

11. The Tribunal noted that the 16 March 2018 is outside the 6 months qualifying period and the applicant responded: “I agree with you it is outside the 6 months period.”

12. The Tribunal noted that the applicant’s application filed with the Department on 20 September 2018, stated that she completed her course of study at the Holmes Institute on 15 March 2018 and the applicant responded: “I did not know what was the correct date.”  

13. The Tribunal asked the applicant what is the correct date and the applicant responded 27 March 2018, which the Tribunal observed is the date of the document containing notification of course completion and that the date of the administration is not necessarily the date when you [the applicant] finished your course.

14. The Tribunal put to the applicant that three dates for the completion of the course have been put forward by the applicant in evidence, including:

    a.12 March 2018 – the course completion date stated in the letter of 27 March 2018 for the Holmes Institute;

    b.15 March 2018 – the date included in the applicant’s application of 20 September 2018; and

    c.16 March 2018 – the date provided in evidence after the applicant met the Holmes Institution Director on 15 March 2018.

15. The Tribunal observed with the applicant that if the Tribunal was to consider any of these dates they would all be beyond the 6 months required in the regulation.

16. The applicant provided evidence that she had moved to Western Australia and has been working at the Main roads Department for one month and that she was working in the accounts receivable area.

    Does the applicant hold a specified qualification?

17. Subclause 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 – Specification for Skilled visas. In this case, the applicant holds a Bachelor of Professional Accounting which is a qualification specified in that instrument.

18. Accordingly, cl.485.231(1) is met.

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

19. Subclause 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 13/031 - Skilled visas.

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

21. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

22. Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

23. 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,

    ·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.

24. ‘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 – Skilled visas].

25. The applicant has advanced in submissions and oral evidence four different dates concerning the completion of a Bachelor of Professional Accounting at the Holmes Institute, including:

    a.12 March 2018 – the course completion date stated in the letter of 27 March 2018 for the Holmes Institute;

    b.15 March 2018 – the date included in the applicant’s application of 20 September 2018;

    c.16 March 2018 – the date provided in evidence after the applicant met the Holmes Institution Director on 15 March 2018; and

    d.27 March 2018 – the date of the correspondence from the Holmes Institute that confirmed completion of the course on 12 March 2018.

26. The Tribunal is satisfied that the correspondence from the Holmes Institute of 27 March 2018, that contains evidence that the course requirements for the award of the Bachelor of Professional Accounting, as at 12 March 2018 is the most reliable evidence for the date of completion of the course.

27. Alternatively, in circumstances where the Tribunal was persuaded to accept either the 15 March 2018 or 16 March 2018, the applicant would still be outside the requirement contained in Subclause 485.231(3), which requires that the applicant’s study for the specified qualification or qualifications to meet the ‘Australian study requirement’ must be in the 6 months immediately before the day the visa application was made. In this regard, the relevant date would be 6 months prior to 20 September 2018.

28. Further, the Tribunal does not accept the claim by the applicant that the date of the correspondence from the Holmes Institute of 27 March 2018, which notified the applicant of the results of the course completion, as at 12 March 2018 is an accepted date of completion, as this is purely a date of administrative correspondence and does not purport to be the date of completion of the course.

29. The Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.

30. Accordingly, cl.485.231(3) is not met.

31. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl.485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Warren Stooke AM
    Member