Nguyen (Migration)

[2020] AATA 6077

Nguyen (Migration) [2020] AATA 6077 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Anh Nguyen

CASE NUMBER:  1811359

HOME AFFAIRS REFERENCE(S):          BCC2018/948733

MEMBER:Kira Raif

DATE:18 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2020 at 5:26pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Australian study requirement in the 6 months before the application was made not met –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 11 April 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 is a national of Vietnam, born in June 1992. The applicant applied for the visa on 27 February 2018. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant met the Australian study requirement in the 6 months before the application was made. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 October 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held duri ng the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   Relevant law

5. 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.

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. 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.

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

8. The applicant provided to the Tribunal a copy of the primary decision record. The applicant stated in his application that in Australia he completed a Bachelor of Information Technology and a Master of Information Technology.

9. The delegate noted that the applicant provided with his application a letter of completion in relation to the Bachelor degree and a letter in relation to his Masters, from La Trobe University, which refers to the applicant being ‘currently enrolled in’ with no course completion date. The applicant subsequently provided a letter of completion relating to the Masters of IT which states that the applicant completed the course on 29 March 2018. As a result, the delegate found that the Masters course could not be counted toward the Australian study requirement while the Bachelor course was completed more than six months before the application was made. The delegate was not satisfied the applicant completed the Australian study requirement in the 6 months before the application was made.

10. The applicant gave to the Tribunal a copy of the letter of completion issued by La Trobe University on 6 April 2018 which states that the applicant commenced the course in February 2016 and specifying the course completion date as 29 March 2018. 

11. In oral evidence the applicant confirmed that he completed the Masters at the end of March 2018 and the Bachelor course in 2016. The applicant told the Tribunal that his Student visa was about to expire. He had to complete one subject and in January 2018 his lecturer told him that he had passed the subject, so he applied for the Skilled visa. Following the hearing, the applicant provided to the Tribunal a copy of the evidence of scholarship payment for the period ending in February 2018. The Tribunal does not accept that as evidence of course completion, since it is not obvious that any scholarship payments are linked to course duration or that they correspond precisely to the time when the applicant completes academic requirements for a qualification.

12. Following the hearing, the Tribunal wrote to La Trobe University to clarify the date of course completion. On 12 November 2020 the education provider confirmed that the course was completed in March 2018, as stated in the letter of completion, and that while the applicant had submitted all assessment in January, the university had undertaken further steps to receive student results from the student coordinator, process the results and undertake other work. The Tribunal provided that information to the applicant pursuant to s. 359A of the Act. The applicant replied by providing information about when he completed the last subject and undertook exams, as well as evidence of the last scholarship payment. The applicant claims that he completed the course earlier than advised by the university. The Tribunal provided the applicant’s submission to the education provider and on 1 December 2020 La Trobe again informed the Tribunal that the earlier advice was correct and that the applicant’s evidence does not change their assessment of when the applicant met the course requirements. The Tribunal again wrote to the applicant pursuant to s. 359A seeking his comments on this information. The applicant did not provide a response within the specified period.

13. As noted above, the Tribunal does not consider that the scholarship payments are indicative of the course completion as there need not be an exact correlation between the date the course is completed and when the last payment is made. Scholarship payments may be made on any variety of bases and the Tribunal does not consider that the date of the last payment constitutes probative evidence of course completion.

14. The Tribunal has considered the applicant’s evidence about course completion, as well as the advice from the education provider. The Tribunal is of the view that the education provider is best place to determine when the course was completed as it is aware of what steps were required to be undertaken, and what processes completed, before the applicant could be said to have met course requirements. The advice from the education provider is that the applicant completed the course on 29 March 2018 because following the submission of the last assessment, the university had undertaken further tasks to assess the applicant’s results and other requirements for course completion. Having regard to the evidence provided by La Trobe, the Tribunal finds that the applicant completed the Masters course in March 2018, after he made the application for the visa. The applicant’s evidence is that he completed the bachelor course in 2016 and that was more than 6 months before the application was made.

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

    Conclusion

16. 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

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

    Kira Raif
    Senior Member