Poopath (Migration) - [2022] AATA 2171

Poopath (Migration) [2022] AATA 2171 (8 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Merin Poopath
REPRESENTATIVE:  Mr Harkirat Singh (MARN: 1912161)
CASE NUMBER:  2116260
HOME AFFAIRS REFERENCE(S):          BCC2020/2860565
MEMBER:Alison Mercer
DATE:8 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:
·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 8 June 2022 at 6:17pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant’s agent applied for the wrong stream for the visa – applicant satisfied the Australian study requirement – application was substantially in compliance with the requirements for Post-Study Work– decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 485.223, 485.231
CASES
Abdul v MIBP [2021] FCCA 349
Kamel (Migration) [2020] AATA 463
Singh v Minister for Immigration & Anor [2020] FCA 774

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 21 December 2020. 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 (Cth) (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.
The delegate refused the visa because the applicant did not satisfy cl 485.223 of Schedule 2 to the Regulations, which requires that applicants who have applied in the Graduate Work stream have provided evidence with their visa application of having applied for a skills assessment from the appropriate assessing authority for their nominated occupation. The delegate found that the applicant had applied in the Graduate Work stream but had answered ‘no’ to the question in the visa application form about whether she had applied for a skills assessment.
The Tribunal received a review applicant on 10 November 2021, which was accompanied by a copy of the delegate’s decision and an authority by which she appointed a registered migration agent, Mr Harkirat Khan, as her representative and authorised recipient for correspondence.
On 8 April 2022, the Tribunal wrote to the applicant via her agent to invite her to attend a telephone hearing on 4 May 2022. She was asked to respond as soon as possible to indicate whether she would attend, and to provide any further material she wished to submit at least 1 week prior to the hearing.
On 26 April 2022, the applicant and her agent responded to indicate that they would attend the hearing.
On 27 April 2022, the applicant and her agent provided the following material:
·agent’s legal submissions;
·copy of biodata page of applicant’s Indian passport;
·copy of the applicant’s Bachelor Of Nursing Academic Transcript from Federation University indicating the applicant completed the course on 7 December 2020;
·copy of the applicant’s Bachelor Of Nursing Graduation testamur indicating she was awarded the degree on 14 December 2020;
·copy of the applicant’s positive skills assessment from the Australian Nursing and Midwifery Assessing Council (ANMAC) issued 27 January 2022;
·copy of the applicant’s registration as a nurse (division 1) with the Australian Health Practitioners Registration Authority (AHPRA), expiry date 31 May 2022 ; and
·evidence of email communication between the agent and the applicant for the purposes of the subclass 485 visa, variously dated between October and December 2020.
The agent’s submissions were as follows [footnotes removed for formatting reasons]:
…
Purpose of the Submission
To establish that:
1.The intention of the applicant was to apply for Post Study Work Stream, but the Agent applied in the wrong- Graduate Work stream.
2. The Applicant relied on an un-registered Migration/Education Agent for the application of subclass 485 Temporary Graduate Visa.
3. The applicant satisfied the criteria for the Post Study work stream as intended by the applicant.
4. To request the Honorable Presiding member to remit the application so that it can be considered in the Post Study work stream as the applicant satisfied the requirements.
Legislation
To make a valid application (Section 46 of Migration Act 1958) for subclass 485 application, Schedule 1 Criteria under class VC- Item 1229 needs to be satisfied.1 The criteria for the application and grant of the subclass 485 visa is set out under Part 485 of the Schedule 2 of the Migration Regulations 1994.2
Clause 485.2 of Schedule 2 Criteria sets out two streams of the subclass 485 Visa as follows:
1. Graduate Work Stream: The criteria for the application of Graduate work steam are set out under sub clause 485.22 of Schedule 2 Criteria along with the common application criteria.3
Under the application criteria for Graduate Work stream:
1. The applicant should have satisfied the Australian Study requirement within the last 6 months. Australian Study requirement is defined under regulation 1.15F of Migration Regulations 1994.4
2. The Study (Degree diploma or trade qualification) should be closely related to the nominated occupation.
3. the applicant is required to nominate an occupation and should have applied for a Skills assessment from the relevant assessing body. Skilled Occupation is defined under regulation 1.15I.5 Relevant assessing authorities are set out under Legislative Instrument LIN 19/051- Skilled Occupations, Relevant Assessing Authorities and Countries for General Skilled Migration Visas.
4. if the Skills assessment is completed, it should have been assessed within the last 3 years.
2. Post Study work stream: The criteria for the application of Post Study work stream are set out under subclause 485.23 of Schedule 2 criteria, along with the common criteria.6
Under the Application Criteria for the Post Study Work stream
1. The applicant is required to have completed a qualification specified by the Minister.
2. The qualification should have been awarded by the educational institution specified by the Minister in writing.
3. The applicant should have satisfied the Australian Study requirement in the last 6 months.
Common Criteria for both the streams is stated under Subclause 485.21 of the Schedule 2 criteria.7
Common criteria for primary applicants:
1. That they have not held a subclass 476 visa or a 485 visa in the graduate work stream or two 485 visas in the Post study work stream.
2. Complete a language test and obtain the score as specified by the Minister (Unless holding specified passport)
3. To have applied for an Australian Federal Police National police check.
4. Have adequate arrangements for Health insurance.
Reason for the refusal
The applicant’s visa was refused pursuant to subclause 485.223 of the Migration Regulations 1994 as she didn’t provide Skills assessment which was required as Time of application criteria for Graduate work stream.8
The applicant didn’t satisfy the Skill assessment requirement and Applicant’s agent selected ‘No’ as the answer of the question when asked if the applicant has completed the Skills assessment.
While the application was submitted by the agent in the wrong stream, the agent was truthful in saying that the applicant hasn’t applied or completed the Skills assessment.
SUBMISSION
Intention of the applicant
It is submitted that the applicant’s intention was to apply for subclass 485 visa in the Post study work stream. The applicant completed the Bachelor of Nursing on 7th DEC 2020 and towards the completion of her degree, became aware of the subclass 485 Temporary Graduate visa. According to the applicant, she wasn’t aware of the requirements, and she spoke with her friends in the university about the requirements and she was told by her classmates that as she is about to complete her Bachelors, she will be eligible to apply for the Temporary Graduate Visa in Post study work stream. The applicant notified us that towards the end of Nov 2020, she was told by one her peers that she doesn’t need skill assessment for the application and only needs 6 bands or equivalent in English test, and she needs to satisfy couple more requirements. The applicant went through the requirements on Department of Home affairs website and became aware of the requirements for the application for Post study work stream. She was not confident to apply herself and decided to approach her previous agent who applied for her Student Visa.
2. Reliance on Un-registered Migration Agent
It is submitted that the applicant’s agent applied for the wrong stream for the visa and the applicant relied on her agent for the application.
The applicant approached her previous agent on 16 Dec 2020 (Thressia (Tressa) Mathew from T and TC- [email protected]) who applied for her student visa earlier. She didn’t know any other agent and she decided to seek advice from her for the application of subclass 485 Visa. (Exhibit 7) She made the payment of $400 to the agent on the same day.(EXHIBIT 13)
She was told that the application will be completed asap if she sent the documents. The applicant sent the documents, and the application was submitted to the department by the Agent on 21st Dec 2020. (Receipt and Emails attached)
To the best of our knowledge, there is no active registration with OMARA for Ms. Tressa Mathew, and we believe she is an education agent facilitating college enrollments and she facilitated Ms. Poopath’s Bachelor of Nursing enrollment and Student Visa. She further applied for her Subclass 485 application in the wrong stream while the applicant intended to apply in the correct Post study work stream.
The applicant relied on Ms. Mathew for making the application for Subclass 485 visa under the Post Study Work stream and she wasn’t aware that an application was done under the graduate work Stream and not the Post Study work stream. The applicant only became aware when she received the Notification of refusal of application that she didn’t meet the criteria for the Graduate Work Stream as she didn’t have a Skill Assessment for the occupation.
3. Satisfaction of the application criteria for the Post Study work stream
It is submitted that the application satisfies the application criteria for the post study work stream.
3.1 Does the applicant satisfy the common criteria?
Yes, the applicant satisfies the common criteria as follows:
1. She didn’t hold subclass 476 or subclass 485 visa before.
2. She had completed the English test and obtained the required score.
3. She had applied for Australian Federal Police check before the lodgment of application
4. and she had adequate Health Insurance.
3.2 Does the applicant satisfy the relevant qualification requirement?
Yes, the requirement is met as the applicant completed the Bachelor of Nursing from Federation University Ballarat which is specified by the Minister for the application of Subclass 485 Post Study Work stream.
3.3 Does the applicant satisfy the Australian Study requirement?
Yes, the requirement is met as the applicant started the Bachelor of Nursing in 27 Feb 2017 and finished the three years degree on 7th Dec 2020. The degree was conferred by Federation University Ballarat on 14 Dec 2020.
Australian Study requirement as set out under regulation 1.15F of the Migration Regulations 1994, requires the study to be registered in CRICOS- Commonwealth register of Institutions and Courses for International Students for at least 92 weeks and completed in at least 16 months. The course must be delivered in English and the applicant should have undertaken the study while being authorized on a visa to study.9
The bachelor’s degree completed by Ms. Poopath has been completed in more than 36 months and is registered for 156 weeks. The CRICOS Course code is 088144A and the institution code is 00103D.
3.4 Did the applicant satisfy the Australian Study Requirement within the last 6 months of making the application?
9
Yes, according to the course completion letter, the applicant’s study completed on 7 Dec 2020, and she made the application on 21 Dec 2020 which was within two weeks of her study completion.
4. Request
We would like to kindly request the Honorable Presiding Member allow the remittal of application for reconsideration as follows:
4.1. The applicant was unaware of the application in the graduate work stream and was under the impression that the application has been filled correctly by the agent in the Post Study work stream. Since the day of the refusal, the applicant has [sic – incomplete sentence]
4.2. The applicant satisfied the time of application criteria for the application of Post study work stream as above.
4.3. The evidence of email exchanges between the Agent (Unregistered) and the applicant show that she was provided with the receipt of application which doesn’t have the stream listed. The applicant spoke with the Agent on 20th and 21st Dec 2021 and provided the documents such as study completion, AFP receipt, English test results etc. and the application was lodged on 21st Dec 2021.
4.4. In the previous case law under BRG368/201, court allowed the application to be remitted and to be reconsidered in the Post Study work stream as the applicant’s intention was to apply for Post study work stream and the graduate work stream application was mistakenly filled/selected.10
4.5. The case law under SYG3039/2016 is also another authority which allows the reconsideration of application against the Post study work stream.
4.6. In PRAJAPATI, Tribunal allowed the remittal of application which was submitted under the Graduate work stream to be reconsidered against the criteria for the Post Study work stream.11
4.7. In another case of Sansurooah, Tribunal remitted the application for reconsideration under the Post Study work stream as the applicant intended to apply for Post study work stream but mistakenly applied for Graduate work stream.12
4.8. In the case of Parirehwa (Migration)[2020] AATA 2292(25 May 2020), Tribunal allow the remittal and reconsideration of application in the Post study work stream as the application was done under the Graduate work stream and the applicant satisfied the criteria for the Post study work stream.
We kindly request the Respected Presiding Member to kindly allow the remittal of application for reconsideration as the applicant met the requirements pursuant to sub clause 485.231 of the Sch 2 of Migration Regulations 1994(Cth).
Please find the following evidence attached
1. Exhibit 1- Passport
2. Australian Qualifications meeting the Australian Study requirement
Exhibit 2- Completion letter
Exhibit 3- Academic Transcript
Exhibit 4 – Graduation Certificate
3. Exhibit 5- ANMAC Positive Skills assessment
4. Exhibit 6- AHPRA registration
5. Exhibit 7- Email from Applicant to the Agent providing the secondary certificate
6. Exhibit 8- Email from Agent asking for documents
7. We kindly request the Respected Presiding Member to kindly allow the remittal of application for reconsideration as the applicant met the requirements pursuant to sub clause 485.231 of the Sch 2 of Migration Regulations 1994(Cth).
Please find the following evidence attached
1. Exhibit 1- Passport
2. Australian Qualifications meeting the Australian Study requirement
Exhibit 2- Completion letter
Exhibit 3- Academic Transcript
Exhibit 4 – Graduation Certificate
3. Exhibit 5- ANMAC Positive Skills assessment
4. Exhibit 6- AHPRA registration
5. Exhibit 7- Email from Applicant to the Agent providing the secondary certificate
6. Exhibit 8- Email from Agent asking for documents
…
The applicant appeared before the Tribunal by telephone on 4 May 2022 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who also appeared by telephone.
The applicant confirmed that the agent she used for her subclass 485 visa application was the same agent who had lodged the applicant’s student visa and student visa extension. The applicant said that she intended to apply in the Post Study Work (PSW) stream, but the agent made a mistake and selected the Graduate Work (GW) stream. In response to the Tribunal’s query, the applicant said that towards the end of her studies, she discussed visa options with her fellow overseas student friends, and understood that she could apply for a subclass 485 visa in the PSW stream. She never considered getting a skills assessment as it was not necessary for the PSW stream; she understood that, in addition to proof of her Australian studies, she needed to have met the English proficiency requirements. She looked at the Department’s website and felt that she met the PSW requirements, but she said that she did not feel confident to make the application on her own, as she had not done so ever before. This is why she went back to the agent who had handled her student visa applications. The applicant paid a fee and provided all of her documents to the agent. In response to the Tribunal’s query, the applicant said that she did specify to the agent that she wished to apply in the PSW stream. The applicant said that the agent did not provide her with a copy of the online application, only an acknowledgment email from the Department indicating that it had been lodged. The agent told the applicant she had lodged subclass 485 visa applications before, so the applicant trusted that it would be done correctly (that is, in the PSW stream).
The applicant said that she only realised that the application had been made in the GW stream when she received the Department refusal decision. Even after this, the agent maintained that she had applied for the applicant in the PSW stream, and refused to admit that she had made a mistake. She then consulted her present agent, who advised her that the wrong stream had been selected by the agent. The applicant said that she was very stressed by the outcome, as it was not what she intended or expected. In response to the Tribunal’s query, the applicant said that she was currently working as a nurse in the aged care sector, but her uncertain visa status was very stressful for her.
The applicant’s agent submitted that the Tribunal should find that the applicant did intend to apply in the PSW stream but that the incorrect choice of stream was made by the agent engaged by the applicant, without the applicant’s knowledge or instruction. He further submitted that it was clear that the applicant met the PSW requirements and her application should be determined favourably by the Tribunal.
The Tribunal noted that the requirements of Schedule 1 to the Regulations, and caselaw, indicated that applicants had to select 1 stream only (either Graduate Work (GW) or Post Study Work (PSW)) and were not able to be assessed against the stream not selected, unless it could be established that they had genuinely intended to apply for the PSW stream but had accidentally clicked on the GW stream option in the drop-down menu in the online visa application (or vice versa).
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
In her visa application, the applicant indicated that she was seeking to satisfy the primary criteria for a subclass 485 visa in the Graduate Work stream, which includes cls 485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. In particular, cl.485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

It is not disputed that the applicant did not provide evidence that she had applied for a skills assessment prior to making her visa application, and in fact, she acknowledged that she had not done so.
The applicant claimed that the agent she engaged to lodge her subclass 485 visa application had selected the wrong stream in the ‘drop down’ menu (being the Graduate Work) when completing the subclass 485 visa application online, and that the applicant always intended to apply in the ‘Post Study Work’ stream. This is significant, as there is no equivalent requirement to cl.485.223 in the Post Work Study stream criteria.
The requirements for making a valid subclass 485 visa application are set out in Schedule 1 to the Regulations. Item 1229(3)(j) states that an applicant must specify in which stream they are applying:
(j) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa must nominate only one stream to which the application relates.
This indicates that it is not possible for an applicant to apply in the Graduate Work stream, and later seek to apply in the Post Study Work stream instead (or vice versa).
There is some case law on this issue, which the Tribunal must also consider and apply, if it is relevant, binding, and on all fours with the circumstances in this case. In particular, the Tribunal notes that in Singh v MICMSMA [2020] FCA 774 at [66]-[67], the Court held the Minister has no power to grant the applicant a visa in a stream other than the one in which the applicant applied, and the Tribunal has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister. In that case, the applicant had submitted that they had made a mistake in applying in the Graduate Work stream and claimed to have intended to apply for the alternate Post Study Work stream. The Court did not have regard to the applicant’s intention and instead considered that the applicant had made a valid application for a visa in the Graduate Work stream. It is unclear to the Tribunal why the Court did not have regard to the applicant’s claimed intention and whether this was because it considered it irrelevant or that it was not a claim made to the Tribunal. The Tribunal notes that recently, in Abdul v MIBP [2021] FCCA 349, the Court applied Singh in finding that the applicant had applied in the Graduate Work stream and the Tribunal did not have the power to permit the applicant to substitute a Post Study Work stream application. In that case, the applicant had submitted to the Tribunal that he had not appreciated the different stream requirements and had mistakenly applied in the Graduate Work stream as he had just graduated.
Following these cases, it appears to the Tribunal that legally, an applicant cannot change streams and the Tribunal can only consider the stream that the application has been made in. Therefore, as a starting point, it is a finding of fact for the Tribunal as to which application has been made; that is, whether the applicant applied for a subclass 485 visa in the Graduate Work stream or whether they applied for a subclass 485 visa in the Post Study Work stream. As an applicant must satisfy Schedule 1 requirements to make a valid visa application, they also need to demonstrate that they satisfied any stream specific requirements.
For a valid visa application to have been made in the Post Study Work stream, the applicant needs to satisfy its Schedule 1 requirements. For the Post Study Work stream, the applicant must hold, or have held, their first student visa granted on the basis of a post 5 November 2011 application. If they do not satisfy this requirement, then they cannot be considered against the Post Study Work criteria and would need to be considered against the Graduate Work criteria. The fee, location and form requirements are the same for both streams.
In the Tribunal’s view, the Tribunal may make a factual finding that, notwithstanding the stream selected in the form, the applicant had, in fact, made an application for a visa in a different stream and had substantially complied with the visa application form for that stream. This is supported by the two matters which were remitted by consent by the Federal Circuit Court, BRG368/2017 (Tribunal decision 1611832) and SYG3039/2016 (Tribunal decision 1608584). While these matters were remitted before Singh and Abdul, the Tribunal’s view is that the facts in these matters can be distinguished from those considered in Singh and Abdul. In both consent remittal matters, the applicants raised claims at the Tribunal that they had intended to apply for a stream other than the one indicated on their visa application form, had substantially complied with the visa application form and met Schedule 1 requirements for the alternative stream. The reasons for consent given were that the Tribunal had committed a jurisdictional error by only considering the application made in the Graduate Work stream when the applicant had substantially complied with the visa application form for the Post Study Work stream, the stream they intended to apply for. However, the Tribunal is not aware of any judgment that has distinguished Singh and Abdul.
In the Tribunal’s view, a finding of fact on which stream the applicant applied for must be based on the evidence before it. Given it is unclear why in Singh the Court did not have regard to the applicant’s claimed intention to have applied in the alternate stream, it appears open to the Tribunal to consider claims about an applicant’s ‘intention’ when making a factual finding as to which application was made. Moreover, it considers that evidence provided with the application that the applicant satisfies a criterion unique to one stream may support a finding that the application was, in fact, for the stream for which that evidence was relevant. For example, if an applicant has selected Post Study Work stream but has nominated an occupation and included a skills assessment with their application (as required in the Graduate Work stream), and states that they intended to apply for a visa in the Graduate Work steam, this may indicate that their application was, in fact, for a visa in the Graduate Work stream. Conversely, if no occupation was nominated and no skills assessment provided with, or referred to in, the application, and the applicant states that they intended to apply in the Post Study Work stream, this may support a finding that the applicant did not intend to apply in the Graduate Work stream but rather in the Post Study Work stream.
As discussed at hearing, to satisfy the criteria in the Post Study Work stream, in addition to meeting the Australian study requirement as defined in reg 1.15F, an applicant must hold a qualification of a kind specified by the Minister from a specified institution: cl 485.231(1)-(2). The relevant instruments provide that an applicant must have a qualification obtained from study at Australian Qualification Framework (AQF) level 7 or higher, including a Bachelor Degree, Masters Degree or Doctoral Degree from a CRICOS-registered education provider that offers courses at the degree level and above.
The Tribunal notes that these requirements can be distinguished from the general Australian study requirement, which applies to both streams, as the Australian study requirement can be met with qualifications below AQF level 7, including Diploma and trade (Certificate) qualifications. In the Tribunal’s view, if an applicant provided evidence in their application that was made using the Graduate Work form that they held a qualification that met the requirements of cl 485.231(1) and (2), this too might support a finding that they had in fact applied for a visa in the Post Study Work stream.
The matter has been considered in other Tribunal decisions besides the one cited by the applicant’s agent, including:
·Kamel (Migration) [2020] AATA 463 (7 January 2020) (remit)
While these previous decisions made by other Tribunal Members are not binding on the Tribunal (differently constituted) in the present case, the Tribunal has had regard to them.
In this case, the Tribunal gives weight to the fact that:
·the applicant has consistently stated that her intention was to apply in the Post Study Work stream and that the agent who she paid to lodge her online subclass 485 visa application selected the Graduate Work stream from the drop down menu by accident while completing the online subclass 485 visa application; and
·the applicant completed a Bachelor degree in Nursing at Federation University prior to making her visa application.
This indicates to the Tribunal that her intention was to apply in the Post Study Work stream, and not the Graduate Work stream. At hearing, the applicant emphatically told the Tribunal that she intended to apply in the Post Study Work stream and this is what she believed that the agent had done until she received the Department refusal letter.
On balance, the Tribunal considers it appropriate to extend the benefit of the doubt in this case, and it finds that the applicant instructed her agent to apply in the Post Work Study stream, despite her agent selecting the Graduate Work stream from the drop down menu while completing the online visa application.
Further, the Tribunal is satisfied that the applicant substantially complied with the Schedule 1 requirements for the Post Study Work stream, as she paid the correct fee, used the correct form, and (according to the Department’s records) she held her first student visa granted on the basis of a post 5 November 2011 application (her initial subclass 500 visa was granted on 20 February 2017).
Post Study Work stream requirements
In addition to the Schedule 1 validity requirements, the applicant must satisfy the Post Study Work stream requirements set out in cl.485.231:
485.231
(1)  The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2)  Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3)  The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
…
Reg 1.15F    Australian study requirement
(1)  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:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d)  for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note:    Academic year is defined in regulation 1.03.
(2)  In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note:   The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
IMMI 13/013 provides that the specified qualifications referred to above for the purposes of cl.485.231(1) and (2) are:
·Bachelor Degree;
·Bachelor (Honours) Degree;
·Masters by Coursework Degree;
·Masters by Research Degree;
·Masters (Extended) Degree and/or;
·Doctoral Degree.
IMMI 13/031 provides that the specified educational institutions are those that are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above.
In this case, the letter of completion issued December 2020 from Federation University provided by the applicant indicates that:
·she completed a Bachelor of Nursing degree at Federation University on 7 December 2020, having undertaken this course between 2017 and 7 December 2020. It is stated that the course was full time and taught in English.
The Tribunal is satisfied that the applicant’s course and course provider are both specified for the purposes of cl.485.231, and that she completed her Bachelor degree within 6 months of making her subclass 485 visa application on 21 December 2020. The Tribunal is satisfied that this qualification meets the Australian study requirement in r.1.15F as:
(a) it is a registered course; and
(b) it was completed in a total of at least 16 calendar months; and
(c) it was completed as a result of a total of at least 2 academic years study; and
(d) all instruction was conducted in English; and
(e) the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
It follows that the applicant meets the requirements of cl 485.231.
On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.231 of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 485 visa:
·cl 485.231 of Schedule 2 to the Regulations.
Alison Mercer

Member