Nguyen (Migration)

[2021] AATA 2563

Nguyen (Migration) [2021] AATA 2563 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Le Hang Nguyen

CASE NUMBER:  1826289

HOME AFFAIRS REFERENCE(S):          BCC2018/2809199

MEMBER:Wan Shum

DATE:2 June 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 2 June 2021 at 12:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completion date – application lodged prior to completion of course – 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 3 September 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 (Temporary Graduate) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 26 July 2018. 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. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream.

4. 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.

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 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).

8. 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.

9. ‘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).

10. The applicant indicated on the visa application form that she had completed the following study in Australia: Bachelor of Finance at La Trobe University from 22 February 2016 to 1 July 2018.

11. The applicant provided her academic transcript for her Bachelor degree studies which are dated 28 August 2018. The letter of completion from Student Services and Administration at La Trobe University also set out the completion date as 28 August 2018.

12. As the application for the visa was made on 26 July 2018, the delegate was not satisfied that the applicant met the Australian study requirement in the 6 months before the visa application was made.

13. On review, the applicant provided a number of documents which relevantly include a copy of the completion letter previously provided from her University and another copy of her academic results. The completion letter gives the course completion date, being when she qualified for admission to the degree, as 28 August 2018 and the academic transcript bears the same date. The Tribunal invited the applicant to a hearing and indicated that she should submit evidence that she had completed her degree before she made the application for the visa. The applicant advised that she did not wish to participate in the hearing and consented to the Tribunal making a decision on the papers. The Tribunal has thus proceeded to a decision on the information before it.

14. The completion letter and academic transcript indicate that the applicant met the academic requirements for the award of the Bachelor degree on 28 August 2018. As she made her application on 26 July 2018, the applicant does not satisfy the Australian study requirement in the relevant period prior to lodging her visa application. Accordingly, cl.485.231(3) is not met.

15. As the applicant does not meet cl.485.231, the Tribunal finds that she does not satisfy the criteria for the grant of a Subclass 485 visa in the Post-Study Work stream. As this is the stream applied for, the decision under review will be affirmed.

    DECISION

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

    Wan Shum
    Member