Wati (Migration)

[2024] AATA 1601

Wati (Migration) [2024] AATA 1601 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kayna Wati

REPRESENTATIVE:  Mr Michael Moeidjiantho (MARN: 1572961)

CASE NUMBER:  2208408

HOME AFFAIRS REFERENCE(S):          BCC2021/1347198

MEMBER:Amanda Mendes Da Costa

DATE:16 May 2024

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 criterion for a Subclass 485 visa:

·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 16 May 2024 at 12.44pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted

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 31 May 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 July 2021. 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 (Cth) (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 the criteria in Subdivision 485.23.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the coursework for the applicant’s qualification (Bachelor of Commerce) was not completed in the 6 months ending immediately before the day the visa application was made.

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments.

5. The Tribunal determined it was reasonable to hold the hearing by video, 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 conducted by video.  The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

6. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.  The Tribunal also explained the role of the applicant’s representative during the hearing.  The Tribunal informed the applicant that it would seek submissions from both the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does cl 485.231 apply to the applicant?

9. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.231(1A). Based on the above findings, the applicant does not meet cl 485.232 or 485.233. Accordingly, cl 485.231 does apply to the applicant.

10. If cl 485.231 applies, the applicant must hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, and have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

11. On 1 July 2021 the applicant lodged an online application for a Temporary Graduate (VC-485) visa and declared the following completed course:

    ·Bachelor of Commerce with a commencement date of 4 September 2019 and a completion date of 30 June 2021.

12. The documentation provided in support of the review application includes:

    ·Letter dated 5 October 2021 from Deakin University.

    ·Australian Government, Department of Education and Training Confirmation of enrolment.

    ·Applicant’s statement dated 15 April 2024.

13. The letter from Deakin University shows that the applicant has completed a Bachelor of Commerce degree with the course commenced on 1 November 2019 and completed on 8 July 2021.  The letter confirms that the applicant completed all course requirements and graduated with a Bachelor of Commerce degree on 5 October 2021.

14. The Confirmation of Enrolment from the Department of Education and training shows that the applicant the applicant was enrolled in a Bachelor of Commerce course with the Course Start date being 4 November 2019 and the Course End date being 30 June 2021.

15. In her statement, the applicant states that she had yet to receive her letter of Completion from Deakin University when she made her via application.  She explains that she mistakenly believed that the completion date of her course was the same as the ‘Course End’ date (8 July 2021) referred to in the Confirmation of Enrolment document from the Department of Education.  The applicant further explains that she made a genuine mistake when lodging her visa application which she regrets as she has always been honest in her dealings with the Department and is committed to adhering to the visa requirements.  The applicant states that the current visa application was the first one lodged by her independently.

16. The applicant’s evidence during the hearing was consistent with the contents of her statement. She further explained that although the University states that she completed her course on 8 July 2021 she completed all of her exams and assessments in June 2021 and was advised by Deakin University prior to lodging the visa application that she had completed of the course requirements prior to making her visa application.  She said that she would not have made her visa application before being advised by the University that she had passed her final exams and assessments and would subsequently be conferred with a Commerce Degree.

17. Following the hearing the applicant provided a further statement dated 9 May 2024 together with a printout from Deakin University’s website and a letter from Mr William Delany, Student Advisor, Deakin University dated 9 May 2024.

18. In her second statement the applicant states that the confusion regarding the visa application is due to the Department’s visa application website not explicitly stating that the specified ‘end date’ referred to the completion on the Completion Letter from the university.

19. The Tribunal notes that the printout from the Deakin University website indicates that in 2021 the mid-year university examinations commenced on 7 June 2021 and ended on 18 June 2021.

20. In his letter Mr Delany states that the applicant commenced her Bachelor of Commerce course on 1 November 2019 and completed her studies on 8 July 2021. He further states that the Trimester One exam period was held between 7 June 2021 and 18 June 2021.

21. The Tribunal accepts the applicant’s explanation of the circumstances in which she applied for her visa. It accepts that although the letter from Deakin University states that the applicant completed her studies on 8 July 2021 the applicant had in fact completed all the required assessments and examinations for her Bachelor of Commerce degree by 30 June 2021 and that she had been advised by the University by this date that she had successfully completed all outstanding subjects for her degree.

22. Accordingly, the Tribunal considers that the applicant satisfies cl 485.231(1).

23. Based on the above findings, the Tribunal finds that the applicant meets cl 485.231. 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 485.231 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member