PARK (Migration)

[2017] AATA 553

PARK (Migration) [2017] AATA 553 (18 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yujoo Park

CASE NUMBER:  1621986

DIBP REFERENCE(S):  BCC2016/3111459

MEMBER:Hugh Sanderson

DATE:18 April 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

Statement made on 18 April 2017 at 11:02am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream  – Australian study requirement – Course completed 6 months immediately preceding visa application date – Administrative error in course completion date

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.221, r 1.15F(1)

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 2 December 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 19 September 2016. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had satisfied the Australian study requirement within the period of six months ending immediately before the day she made her application.

   Background

4. The applicant is a citizen of Korea and is currently 30 years old.

5. The applicant provided evidence that she had completed a Bachelor Science Mathematics at the University of Sydney and she received the degree on 27 March 2015. She then enrolled in a Master of Professional Accounting at the Holmes Institute. Her academic transcript for that degree showed that she attended the final trimester starting on 9 November 2015 which was completed on 26 February 2016. The academic transcript stated that she completed the Master of Professional Accounting on 14 March 2016.

6. A letter from the Holmes Institute dated 28 April 2016 stated she commenced study on 16 March 2015 and it was concluded on 14 March 2016. The applicant then provided a second letter from the Holmes Institute dated 28 April 2016 stating that she concluded her course on 11 April 2016.

7. The delegate who considered the application found that the applicant had completed her Bachelor of Accounting on 14 March 2016 which was more than six months before the date she lodge the application for the visa. Accordingly, the delegate found that the applicant did not meet the criteria in cl.485.221 and refused the application.

8. The applicant appeared before the Tribunal on 11 April 2017 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

9. The applicant said that Holmes Institute had made an error when they issued their certificates stating she had completed her course she was required to sit for a deferred exam. She said the deferred exam was held after 14 March 2016, but could not remember the exact date.

10. After the hearing the applicant provided the following documents:

    ·Submissions by the applicant;

    ·Copy of email correspondence between the applicant and Holmes Institute in respect of the deferral of her final exam to 19 March 2016; and

    ·Timetable for exams on 18 and 19 March 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Does the applicant meet the Australian study requirement?

13. 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.

14. ‘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.

15. The applicant has completed two courses in Australia. The first is a Bachelor of Science from the University of Sydney which was conducted from 1 August 2010 to 1 February 2015. The second course was a Master of Professional Accounting with the Holmes Institute conducted from 16 March 2015 to 11 April 2016.

16. The issue before the Tribunal was whether the study requirement was satisfied within the period of six months ending immediately before the day she made her application. This would have required her to satisfy the Australian study requirement not earlier than 19 March 2016.

17. Although the original letter and academic transcript issued by Holmes Institute stated that the applicant completed the Master of Professional Accounting on 14 March 2016 the Tribunal finds that this was an error. The Tribunal finds the applicant was required to sit for a deferred exam which was not conducted until 19 March 2016 and that the amended academic transcript which states that she completed her course on 11 April 2016 is the correct date on which she completed her studies. Accordingly, the Tribunal finds that the applicant satisfied the Australian study requirement within the period of six months ending immediately before the day she made her application.

18. The Tribunal finds that the qualifications obtained by the applicant were obtained from a registered course and they were completed in a total of at least 16 calendar months and as a result of at least two academic years study for which all instruction was conducted in English. Over the period that the applicant was studying, she held a relevant Student visa. She continued to hold the subclass 573 Student visa at the time she filed her application.

19. 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.

20. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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

    Hugh Sanderson
    Member