Attuquaye (Migration) [2021] AATA 1116 (25 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Miss Ethel Naa Kordey Attuquaye
CASE NUMBER: 1818349
HOME AFFAIRS REFERENCE(S): BCC2018/1595992
MEMBER:Antonio Dronjic
DATE:25 February 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 25 February 2021 at 3:16pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Graduate Work) – occupation of Child Care Centre Manager – Australian study requirement – two academic years of relevant study – qualification closely related to the nominated skilled occupation – Certificate III course not a requirement for position or skills assessment – decision under review affirmed
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 June 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 April 2018. 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 (the Regulations).
The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualification used to satisfy the Australian study requirement, a Certificate III in Aged Care, is closely related to the applicant’s nominated occupation of Child Care Centre Manager ANZSCO Code: 134111.
The applicant sought review of the delegate’s decision on 22 June 2018 and with her application submitted:
·A copy of the primary decision record; and
·A copy of the provisional skills assessment issued by the Trades Recognition Australia (TRA) on 26 May 2018 as evidence of the applicant’s successful skills assessment for the occupation of Child Care Centre Manager - 134111.
On 4 February 2021, the Tribunal wrote to the applicant advising her that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a video hearing on 25 February 2021.
On 23 February 2021, the applicant’s representative provided submissions and additional documentary evidence. The list of documents is attached to this decision record and marked…
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.
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AGLC
Attuquaye (Migration) [2021] AATA 1116
Case
[2021] AATA 1116
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of Ethel Naa Kordey Attuquaye, who sought to satisfy the primary criteria for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant's nominated occupation was Child Care Centre Manager. The core of the dispute revolved around whether the applicant met the requirements for the Australian study requirement and the close relationship between her qualifications and her nominated occupation.
The Tribunal was required to determine two key legal issues. Firstly, whether the applicant had satisfied the 'Australian study requirement' within the six months immediately preceding her visa application, as stipulated by clause 485.221 of Schedule 2 to the Regulations. This requirement mandates the completion of registered courses totalling at least two academic years of study, undertaken in Australia while holding a study-authorised visa. Secondly, the Tribunal had to assess whether each degree, diploma, or trade qualification relied upon to meet the Australian study requirement was closely related to the applicant's nominated skilled occupation, as per clause 485.222.
In its reasoning, the Tribunal found that the applicant's Diploma of Early Childhood Education and Care, completed on 15 December 2017, was registered for 83 weeks. However, the regulations require at least two academic years of study, which equates to a minimum of 92 weeks. Therefore, relying solely on this qualification, the applicant did not meet the minimum duration for the Australian study requirement. The Tribunal noted that while the applicant also held a Certificate III in Aged Care, this qualification was not considered relevant to the nominated occupation of Child Care Centre Manager. Consequently, the Tribunal concluded that the applicant failed to satisfy the criteria for the grant of a Subclass 485 visa.
As the applicant did not meet the necessary criteria for the Subclass 485 visa, the Tribunal affirmed the decision not to grant the visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant 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 require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl.485.221) and secondly, 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.Does the applicant meet the Australian study requirement? Under r.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 rr.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 (r.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. The applicant is seeking to rely on Diploma of Early Childhood Education and Care, which was completed on 23 December 2017, to meet the Australian study requirement. That is a course that she completed in the 6 months before the visa application was made on 9 April 2018. The CRICOS website confirms that the Diploma of Early Childhood Education and Care the applicant completed at Melbourne Polytechnic was registered for 83 weeks and all instruction was in English. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study – that is, at least 92 weeks of study consistent with the relevant instrument – the Tribunal finds that, relying on her Diploma of Early Childhood Education and Care alone, the applicant does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day her Subclass 485 visa application was made on 9 April 2018 as required by cl.485.221 of Schedule 2 to the Regulations.
Decision
Reasons for decision
Based on the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Antonio DronjicMemberAttachment A – Document List·Submission/cover letter from Marilyn Arcega-Lariosa (Solicitor, Arcega-Lariosa Migration Services) ·Testamur of Ethel Naa Kordey Attuquaye for the qualification ‘CHC30212 Certificate III in Aged Care’ from Einstein College of Australia (04/03/2016)·Record of results of Ethel Naa Kordey Attuquaye for the qualification ‘CHC30212 Certificate III in Aged Care’ from Einstein College of Australia (04/03/2016)·Letter from Melissa Smith (Program Lead – Education, School of Health and Education, Melbourne Polytechnic) (02/01/2018)·Testamur of Ethel Naa Kordey Attuquaye for the qualification ‘Diploma of Early Childhood Education and Care CHC50113’ from Melbourne Polytechnic (15/12/2017)·Statement of results of Ethel Naa Kordey Attuquaye for the qualification ‘CHC50113 Diploma of Early Childhood Education and Care’ from Melbourne Polytechnic·Practical placement agreement between Ethel Attuquaye, Community Kids, and Melbourne Polytechnic (01/03/2017)·Practical placement agreement between Ethel Attuquaye, Goodstart, and Melbourne Polytechnic (08/11/2016)·Practical placement agreement between Ethel Attuquaye, Goodstart West Melton, and Melbourne Polytechnic (13/7/2017)·Letter from Australian Government, Department of Education and Training to Ethel Attuquaye (26/05/2018)·Statement of results of Ethel Naa Kordey Attuquaye for the qualification ‘HEFEADEYS Associate Agree of Early Years Studies’ from Melbourne Polytechnic (10/02/2021)·Letter from Eloise Thomson (Head of Program, Bachelor of Education (Early Years) (09/02/2021)·Tax invoice/receipt from Melbourne Polytechnic to Ethel Naa Kordey Attuquaye (15/12/2020)·Melbourne Polytechnic: High Education Enrolment Summary for Miss Ethel Attuquaye (16/02/2021)·1220.0 – ANZSCO – Australian and New Zealand Standard Classification of Occupants, 2013, Version 1.3 for:oMinor Group 421 Child CarersoUnit Group 4231 Aged and Disabled Carers·Goodstart Early Learning pay advice/slip to Ethel Attuquaye for the periods: o15/01/2018 – 21/01/2018o08/01/2018 – 14/01/2018o12/06/2017 – 18/06/2017o12/06/2017 – 18/06/2017o12/06/2017 – 18/06/2017o26/06/2017 – 02/07/2017o10/07/2017 – 16/07/2017o29/01/2018 – 04/02/2018·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Guardian Community Early Learning Centres Pty Ltd, period: 01/07/2019 – 10/02/2020)·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Guardian Community Early Learning Centres Pty Ltd, period: 01/07/2018 – 27/06/2019·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Guardian Community Early Learning Centres Pty Ltd, period: 01/07/2019 – 10/02/2020)·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: G8 Education Limited, period: 01/07/2019 – 06/10/2019)·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Atherstone Early Learning Centre Pty Ltd, period: 02/09/2019 – 30/06/2020·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Atherstone Early Learning Centre Pty Ltd, period: 02/09/2019 – 30/06/2020)·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Mayfield Childcare Ltd, period: 29/10/2019 – 30/06/2020)·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Mayfield Childcare Ltd, period: 29/10/2019 – 30/06/2020)·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Goodstart Early Learning Ltd, period: 01/07/2019 – 30/06/2020)·Attachment BUNIT GROUP 1341 CHILD CARE CENTRE MANAGERS CHILD CARE CENTRE MANAGERS plan, organise, direct, control and coordinate the activities of childcare centres and services including physical and human resources.Indicative Skill Level:In Australia and New Zealand: Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).Tasks Include:developing and implementing programs to enhance the physical, social, emotional and intellectual development of young childrenproviding care for children in before-school, after-school, day, and vacation care centresdirecting and supervising Child Carers in providing care and supervision for young childrenensuring the centre is a safe area for children, staff and visitorscomplying with relevant government requirements and standardsliaising with parentsmaintaining records and accounts for the centrerecruiting staff and coordinating professional developmentOccupation:134111 Child Care Centre Manager134111 CHILD CARE CENTRE MANAGERAlternative Titles:Child Care Centre DirectorChild Care CoordinatorPlans, organises, directs, controls and coordinates the activities of a childcare centre or service including physical and human resources.Skill Level: 1