Nguyen (Migration)

The Administrative Appeals Tribunal considered an application by Ms. Nguyen for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream. The central dispute concerned whether Ms. Nguyen satisfied the Australian study requirement, a criterion stipulated by clause 485.221 of Schedule 2 to the Migration Regulations 1994. This requirement mandates that an applicant must have completed their Australian study within the six months immediately preceding the date of their visa application.

The primary legal issue before the Tribunal was to determine the actual completion date of Ms. Nguyen's Bachelor of Business in Hotel Management course. This was crucial because the visa application was lodged more than six months after one of the provided completion dates, but potentially within the six-month window of another. The Tribunal had to reconcile conflicting evidence regarding this completion date, including letters from the educational institution and the applicant's own statements and academic transcript.

The Tribunal's reasoning focused on the definition of "completed" in relation to a qualification, which means meeting the academic requirements for its award. While Ms. Nguyen's application form indicated a completion date of 30 October 2015, and a letter from The Hotel School Sydney stated May 2015, her academic transcript suggested completion of units in Session 1 of 2015. Ms. Nguyen also explained that she had to sit a supplementary exam in October 2015 for a failed subject, and she considered the date she received the results of this exam as her completion date. The Tribunal found that the applicant's explanation regarding the supplementary exam and the official completion date being in November 2015 was credible, suggesting that the earlier completion date of May 2015 was not accurate for the purposes of meeting the visa requirement.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with a direction that Ms. Nguyen satisfied the Australian study requirement as per clause 485.221 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.