Nguyen (Migration)

[2017] AATA 2790

Nguyen (Migration) [2017] AATA 2790 (15 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thu Thao Nguyen

CASE NUMBER:  1606836

DIBP REFERENCE(S):  BCC2016/698581

MEMBER:Wan Shum

DATE:15 November 2017

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 criterion for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

Statement made on 15 November 2017 at 3:09pm

CATCHWORDS
Migration – Skilled (Provisional)(Class VC) visa – Subclass 485 – Australian study requirement met – In 6 months immediately preceding the date of the visa application

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.111, cl 485.221, r 1.03, r 1.15F, r 1.15F(1),
r 1.15F(2), r 2.26AC(6), IMMI 09/040

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 Immigration on 26 April 2016 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 18 February 2016. 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).

3. The delegate refused to grant the visa because the applicant had completed her study more than 6 months before she applied for the visa and did not satisfy cl.485.221 of Schedule 2 to the Regulations.

4. The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant appeared before the Tribunal on 28 September 2017 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 of Schedule 2 to the Regulations which requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets that requirement.

   Does the applicant meet the Australian study requirement?

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. ‘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, ‘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 her application form that she had completed a Bachelor of Business Hotel Management at the Hotel School Sydney, Southern Cross University on 30 October 2015.

11. However, the letter of completion from The Hotel School Sydney provided to the department states that she completed the course in May 2015. This was more than 6 months before the day on which the visa application was made and the delegate refused the visa.

12. On review, the Tribunal has been provided with a copy of the delegate’s decision record and another completion letter from The Hotel School Sydney dated 25 May 2017. In this letter it states the course completion date of 23 November 2015. A copy of the applicant’s academic transcript was also provided, which indicates that she was given Advanced standing in 12 units and completed 8 units in Session 1 and 2 of 2014, and a further 4 units in Session 1 of 2015. This suggests to the Tribunal that the applicant had completed her studies in Session 1 of 2015, which would be consistent with a course completion date of May 2015 and not November 2015.

13. At the hearing, the Tribunal discussed with the applicant her study in Australia. The applicant confirmed that she had begun studying a Bachelor of Business Degree in Marketing at CSU in 2013 and then transferred to a Bachelor of Business in Hotel Management at SCU, the Hotel School Sydney. She said that she had not completed her studies in May 2015 as she had failed one of the subjects. She said she had to sit a supplementary exam for the Introduction to Business Law in October 2015. The Tribunal noted that she had indicated on her visa application form that she had completed her studies on 30 October 2015. The applicant said that she assumed she that was the date of completion because it was when she found out the results of the supplementary exam. But that the official date of completion according to the University was in November 2015.

14. The applicant said that she had asked for a confirmation letter from SCU regarding the law subject and would provide this when available.

15. On 28 September 2017, a further letter from The Hotel School Sydney was provided dated 28 September 2017, regarding advanced standing units gained from Charles Sturt University (CSU) for four units. The letter confirms that the course commencement date was 17 February 2014 and course complete date was 23 November 2015.

16. On 26 October 2017, the Tribunal received a letter dated 25 October 2017 from Helen Walsh, Course Coordinator, School of Law and Justice confirming that the applicant was enrolled in the Unit Introduction to Business Law in Session 1, 2015 as part of the Bachelor of Business in Hotel Management degree. It further states that “[h]aving received a Fail on her first exam attempt, [the applicant] was approved for an exam resit which she undertook on the 1st October 2015. Subsequent to this, a Pass grade was granted”.

17. The Tribunal accepts that, based on this additional letter, the applicant had undertaken an exam resit on 1 October 2015 and therefore, she did not complete her studies until 23 November 2015. The Tribunal sought and obtained verification from SCU.

18. The Tribunal is satisfied that the applicant’s date of completion was 23 November 2015.

19. On the material before it, the Tribunal finds that the applicant commenced the course on 17 February 2014 and completed the course on 23 November 2015. It further finds that the Bachelor of Business in Hotel Management course is a registered course, being a course of education provided by an institution that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. Consistent with her oral evidence, the PRISMS records indicate that the applicant was enrolled in a Bachelor of Business (Marketing) at USC from February 2013 to May 2014, and it is recorded that the student had ceased studies because of non-payment of fees. The Bachelor of Business (Marketing) offered by USC is a CRICOS registered course of 156 weeks’ duration, conducted in English.

20. The Tribunal finds that the applicant was awarded credit by CDU for 4 units she completed at USC. It finds that she undertook part of a Bachelor of Business (Marketing) at USC in the period February 2013 to May 2014. 

21. The Tribunal is satisfied that the applicant’s courses were both registered for at least 2 academic years, and that the courses were completed in a total of at least 16 calendar months (at least 12 months at USC and over 12 months at The Hotel School Sydney, SCU). It is also satisfied the courses were conducted in English.  The applicant’s movement records confirm she held a student visa during the relevant period. She was therefore authorised to study in Australia while undertaking the course.

22. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

23. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations.

    Wan Shum
    Member