MIGRATION - Skilled (Provisional) (Class VC) visa - Subclass 485 (Temporary Graduate) - Australian study requirement - qualification completed within six months before application made - first letter of completion gives date more than six months before, and second less than - requirements deemed met on later date - decision made without hearing necessary - decision under review remitted

Migration Act 1958 (Cth), s 65

Administrative Review Tribunal Act 2024 (Cth), s 106(3)(a), (b)(iii)

Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)

Ali v MICMSMA [2021] FCA 1311

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2025 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant applied for the visa on 28 November 2024. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed their qualification used to satisfy the Australian study requirement in the six months immediately before the day the visa application was made.
3. The applicants were represented in relation to the review.
4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

1. Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) sets out the circumstances where the Tribunal may reach a decision without a hearing.
2. To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met.
3. Paragraphs 106(3)(a) and (b) of the ART Act sets out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour or the applicant or the applicant requests the Tribunal to make its decision without holding the hearing.
4. In this case, the Tribunal is satisfied that both paragraphs 106(3)(a) and 106(3)(b)(ii) have been met, as the only parties to the proceeding are the applicant and a non-participating party; and the decision is wholly in favour or the applicant.

1. 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, and for the applicant's study for the qualification or qualifications to have satisfied the 'Australian study requirement' in the six 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 six 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)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.

1. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.

Does the applicant hold a specified qualification?

1. Clause 485.231(1) requires the applicant to hold a qualification, or qualifications of a kind specified by the Minister. In this case, the applicant holds a Master of Business Administration which is qualification specified in that instrument.
2. Therefore, the applicant satisfies cl 485.231(1).

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

1. Clause 485.231(2) requires the applicant's qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister.
2. In this case, the applicant's qualification was conferred or awarded by Torrens University Australia which is an educational institution specified in that instrument.
3. Therefore, the applicant satisfies cl 485.231(2).

Does the applicant meet the Australian study requirement?

1. Clause 485.231(3) requires that the applicant's study for the qualification or qualifications met the 'Australian study requirement' in the six months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within six months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.
2. 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 one 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 two 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.
3. '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.
4. As set out in the delegate's decision, the applicant relied on having completed a Master of Business Administration at Torrens University, commenced 17 February 2020 and completed on 12 May 2024. The delegate noted that the applicant provided a Letter of Completion issued by Torrens University that confirmed the completion date as 12 May 2024.
5. The delegate noted that the applicant lodged this visa application on 28 November 2024 and as a result, they did not consider that this qualification was completed within the period of six months immediately before the day the application was made.
6. On review, the applicant provided to the Tribunal a further Letter of Completion issued by Torrens University confirming that despite a completion date of 12 May 2024, all course requirements for the award of this qualification were deemed met by the applicant on 11 June 2024.
7. The Tribunal considers that a 'completion date' means that the education provider must have made its decision that the student has met all the academic requirements. The documentary evidence now shows that this had not been done by 12 May 2024, but rather the course requirements were not recorded as met until 11 June 2024, and for this reason the Tribunal finds that 12 May 2024 is not the applicant's 'completion date' despite it being categorised as such in earlier correspondence from Torrens University.
8. The Tribunal notes that its approach is supported by the comments made in the matter of Ali v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311, where it was stated:

The court in Ali affirmed and applied the test laid out in Venkatesan v Minister for Immigration [2008] FMCA 409; (2008) 216 FLR 356. That test requires that 2 events must occur before a course can be considered "completed" for the purposes of the regulations. Firstly, the student must have completed all their academic requirements. Secondly, the education provider must have made its decision that the student has met all the academic requirements.

It is the second event that is most relevant to this application. In particular, the courts have ruled that a unit is to be regarded as completed for the purposes of the regulation as soon as the education provider has finished assessing and evaluating the student's work.

1. The Tribunal accepts the applicant's documentary evidence submitted on review and finds that the applicant's proper 'completion date' for the purposes of the regulations, is the date that all course requirements for the award of this qualification were deemed met by the applicant, and that is on 11 June 2024, as confirmed by Torrens University.
2. The Tribunal finds that this completion date is within the six months immediately before the day the visa application was made on 28 November 2024.
3. Based on the documentary evidence contained on file, the Tribunal also makes the following findings:
   • The qualification is a registered course, completed at a CRICOS registered institution.
   • The qualification was completed in a total of at least 16 calendar months and as the result of at least two academic years of study.
   • The completion certificate issued from the education provider confirms that the qualification was conducted in English.
   • In addition, Departmental checks confirm the applicant held the relevant student visa authorising study at the relevant times.
4. As a result, the Tribunal finds that the applicant's study for the qualification or qualifications satisfied the Australian study requirement in the six months immediately before the date of the visa application.
5. Accordingly, cl 485.231(3) is met.
6. Based on the above findings, the Tribunal finds that the first named 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.

1. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:
   • cl 485.231 of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Narayan Prasad Humagain (MARN: 1802195)