Agustin (Migration) - [2022] AATA 1808

Agustin (Migration) [2022] AATA 1808 (24 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Larry Andrew Agustin
REPRESENTATIVE:  Mr Imran Nawaz Warraich
CASE NUMBER:  2105385
HOME AFFAIRS REFERENCE(S):          BCC2017/4169809
MEMBER:Mary Sheargold
DATE:24 May 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 485.221 of Schedule 2 to the Regulations
·cl 485.222 of Schedule 2 to the Regulations

Statement made on 24 May 2022 at 2:49pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Chef – applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application – qualification is closely related to Mr Agustin’s nominated skilled occupation – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 485.221, 485.222
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 Immigration and Border Protection on 30 November 2017 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 8 November 2017. 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 to grant the visa because Mr Agustin did not satisfy cl 485.222 of Schedule 2 to the Regulations because his Advanced Diploma of Leadership and Management was found not to be closely related to his nominated skilled occupation of Chef, ANZSCO 351311.
This application was first heard by the Tribunal (differently constituted) in May 2020. The Tribunal in that instance affirmed the Department’s decision on the basis that none of the subjects studied in Mr Agustin’s Advanced Diploma of Leadership and Management had any practical application to the trade skill identified in the ANZSCO descriptor for the occupation of Chef. In April 2021, Judge Riethmuller issued orders, made with the consent of the Minister, that the Tribunal reconsider the application according to law.
Mr Agustin appeared before the Tribunal by telephone on 23 May 2022 to give evidence and present arguments. He is represented in relation to the review, but the representative elected not to attend the hearing.
For the following reasons, I have concluded that the matter should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agustin (Migration)

Details

AGLC: Agustin (Migration) [2022] AATA 1808
Case: [2022] AATA 1808
Decision Date: 24 May 2022

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, by Mr Agustin. The dispute before the Tribunal was whether Mr Agustin satisfied the primary criteria for the visa, specifically clauses 485.221 and 485.222 of Schedule 2 to the Regulations. These clauses require an applicant to have satisfied the 'Australian study requirement' in the six months immediately preceding the visa application, and that any qualifications used to satisfy this requirement must be closely related to the applicant's nominated skilled occupation.

The Tribunal was required to determine whether Mr Agustin met the definition of satisfying the 'Australian study requirement' as set out in regulation 1.15F(1). This involved assessing whether he had completed one or more degrees, diplomas, or trade qualifications awarded by an Australian educational institution, which were registered courses, completed in at least 16 calendar months, as a result of at least two academic years of study, with all instruction in English, and undertaken in Australia on a visa authorising study. The Tribunal also had to consider whether the qualifications obtained were closely related to his nominated skilled occupation.

The Tribunal found that Mr Agustin had completed a series of courses, including a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality, Advanced Diploma of Hospitality, and an Advanced Diploma of Leadership and Management. The Tribunal was satisfied, based on the provided transcripts, completion statements, departmental records, and the CRICOS database, that each of these courses met the criteria for registered courses, were completed in the requisite timeframes, were taught in English, and were undertaken while Mr Agustin held a student visa. The Tribunal concluded that Mr Agustin met the requirements of clauses 485.221 and 485.222.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with the direction that Mr Agustin had met the specified criteria for the Subclass 485 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, I have concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Mr Agustin is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which include cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These clauses require that Mr Agustin has satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221), and that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222). The issue in the present case is whether the applicant meets those requirements. Mr Agustin’s representative provided detailed written submissions to the Tribunal ahead of the hearing in May 2020, and I have relied on those submissions, as well as Mr Agustin’s oral evidence at the hearing, in reaching my findings set out below. Does the applicant meet the Australian study requirement? 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; 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. ‘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. Mr Agustin came to Australia having purchased a suite of courses of study through the Imperial College of Australia. He commenced his studies with a Certificate III in Commercial Cookery in March 2014, then completed a Certificate IV in Commercial Cookery, a Diploma of Hospitality, and an Advanced Diploma of Hospitality. He completed these courses consecutively and was awarded credit transfers for the majority of subjects from the Certificate IV onwards. The Advanced Diploma of Leadership and Management was taught immediately after the other courses, and was completed 12 months later, in September 2017. I have reviewed the academic transcripts and completion statements for each course that Mr Agustin has provided to the Tribunal. I have reviewed the Department’s records in relation to Mr Agustin’s visa status and I am satisfied that Mr Agustin held a student visa as he completed each of the 5 courses. I have reviewed the CRICOS database, and I am satisfied that each of the 5 courses completed was a registered course of study. Mr Agustin took 12 months to complete his Certificate III in Commercial Cookery and to complete his Advanced Diploma of Leadership and Management, and took 6 months each to complete the other 3 courses, so I am satisfied that they were completed in a total of at least 16 calendar months. The completion letters provided for each of the courses state that they were taught in English. The total duration of all of the courses of study is well in excess of 92 weeks.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and 485.222. 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 485.221 of Schedule 2 to the Regulations·cl 485.222 of Schedule 2 to the Regulations.Mary SheargoldMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.