Young Chaung Sive (Migration)

[2024] AATA 163

Young Chaung Sive (Migration) [2024] AATA 163 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Young Chaung Sive

REPRESENTATIVE:  Mr Konfir Kabo

CASE NUMBER:  2114701

HOME AFFAIRS REFERENCE(S):          BCC2020664837

MEMBER:Amanda Mendes Da Costa

DATE:31 January 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 31 January 2024 at 8.57am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – qualification completed after application made – all requirements completed before but academic transcripts dated after – student account confirmed successful completion – ‘completed’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), (2), Schedule 2, cl 485.231(3)

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 1 October 2021 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 3 March 2020. 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 cl 485.231, 485.232 and 485.233.

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 was not completed in the six 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 12 December 2023 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 him and his 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. The representative attended the Tribunal hearing.

8. The documentation provided to the Tribunal for the purpose of the review includes the following:

   ·Written submissions dated 9 January 2024.

   ·Employer reference, Caravan, Trade, and Industries Association of Victoria dated 9 December 2023.

   ·Decision Record, Migration Review Tribunal (Case Number 1202663), dated 29 November 2012.

   ·Email correspondence dated 19 February 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred, or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

11. In their decision the delegate noted that the applicant had provided Academic Transcripts for a Bachelor of Business (Event Management/Marketing) degree obtained from La Trobe University on 2 April 2020[1]. The delegate further noted that the Academic Transcripts state that the completed his course on 12 March 2020 which was after the visa application was made. Based on this information, the delegate found that the applicant did not meet the requirements of cl 485.231 as his coursework for the degree was not completed in the six months ending immediately before the day the visa application was made.

    [1] The Tribunal notes that the Department’s file contains a letter from La Trobe University dated 6 April 2020 which also confirms that the applicant’s course was completed on 12 March 2020.

    Applicant’s evidence the hearing

12. The applicant told the Tribunal that although the academic transcripts for his Bachelor of business degree indicate that his course was completed on 12 March 2020, he actually completed his studies prior to making his visa application on 3 March 2020.  The applicant said that he became aware that he had completed all of the requirements for his course when he checked the La Trobe University StudentOnline account prior to making the visa application.  This account included information about his academic results which confirmed that he had successfully completed the course requirements for his outstanding academic subjects. The applicant further explained that when he viewed this information, he was aware that he has completed all of the required coursework for his degree qualification.

13. The applicant told the Tribunal that he would not have lodged his visa application unless thought that he had completed the course for his Bachelor of Business degree.

    Applicant’s submissions

14. The applicant referred to and relied upon the decision of the Migration Review Tribunal (MRT) in Case Number 1202663, dated 29 November 2012. The applicant claims that this decision is apposite to the applicant’s situation. In that case, the MRT considered whether the review applicant in that case had satisfied the requirements for a Subclass 885 visa, which included a requirement that a visa applicant had satisfied the study requirement in the six months immediately before the visa application was made.

15. In granting the review application, the MRT found that in reg 1.15F ‘completed’ in relation to a degree, diploma or trade qualification means having met the academic requirements for its award and that the academic requirements do not include the formal conferral of the degree. The MRT considered that the essential question for the Tribunal to determine is when the applicant completes their studies.

16. The applicant (in this case) submits that his oral evidence during the hearing establishes that although the formal advice (in the Academic Transcripts and letter from La Trobe University) indicates that he completed all of the requirements for his Bachelor of Business (Event Management/Marketing) on 12 March 2020, he actually completed the necessary studies and was advised that he had passed each of his outstanding subjects prior to the lodging of the visa application.

17. The applicant submits that this means he has met the requirements of cl 485.231(3).

    Does the applicant hold a specified qualification?

18. Clause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds a Bachelor of Business (Event Management/Marketing) degree, which is a qualification specified in that instrument.

19. Therefore, the applicant satisfies cl 485.231(1).

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

20. Clause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 14/010. In this case, the applicant’s qualification was conferred or awarded by la Trobe University which is an educational institution specified in that instrument.

21. Therefore, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

22. Clause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

23. Under reg 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,

    ·that were completed in a total of at least 16 calendar months,

    ·that were completed as a result of a total of at least 2 academic years study,

    ·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.

24. ‘Degree,’ ‘diploma,’ ‘trade qualification,’ ‘registered course,’ ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: LIN 19/085.

25. The Tribunal found the applicant to be a credible witness who gave clear and consistent evidence. It accepts his explanation of checking his StudentOnline account prior to 3 March 2020, which confirmed that he had successfully completed the required coursework for his Business (Event Management/Marketing) degree prior to making his visa application.

26. Based on the evidence before it (including the oral evidence of the applicant and the information in the Departmental and Tribunal files) the Tribunal finds that the applicant has completed a degree for award by an Australian educational institution as a result of a course: 

    ·that is a registered course.

    ·that was completed in a total of at least 16 calendar months.

    ·that was completed as a result of a total of at least 2 academic years study.

    ·for which all instruction was conducted in English; and

    ·            that the applicant undertook while in Australia as the holder of a visa:

27. Accordingly, the Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

28. Therefore, cl 485.231(3) is met.

29. 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

30. 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