Cheok (Migration)

[2024] AATA 293

Cheok (Migration) [2024] AATA 293 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Valerie Siow Ching Cheok

REPRESENTATIVE:  Mr Glen Teow Hua Ong (MARN: 1385471)

CASE NUMBER:  2201641

HOME AFFAIRS REFERENCE(S):          BCC2021/1036803

MEMBER:Antonio Dronjic

DATE:4 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 04 January 2024 at 12:26pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post Study Work stream – Australian study requirement – Bachelor of Business (International Hotel Management) – completion letter – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.15F; 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 3 February 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 5 May 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 delegate was not satisfied on the evidence presented to the Department that the applicant’s Bachelor of Business (International Hotel Management) degree was completed in the 6 months ending immediately before the day the application was made.

4. The applicant applied for a review of the delegates’ decision on 8 February 2022 and with the review application submitted:

   ·A copy of the primary decision record and

   ·Completion letter issued by Le Cordon Bleu Australia dated 18 December 2020 as evidence that the applicant completed her Bachelor of Business (International Hotel Management) degree between 4 July 2018 and 4 December 2020.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to section 360(2)(a) of the Act

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 to 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)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232 or 485.233 (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.

   Does cl 485.231 apply to the applicant?

7. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: 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 when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a) or 485.233(1)(a). The applicant therefore does not satisfy cl 485.232 or 485.233, and cl 485.231 does apply.

   Does the applicant hold a specified qualification?

8. 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 (International Hotel Management) degree from the Le Cordon Bleu Australia which is a qualification specified in that instrument.

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

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

10. Subclause 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 13/031.

11. In this case, the applicant’s Bachelor of Business (International Hotel Management) degree was conferred or awarded by Le Cordon Bleu Australia, which is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above, and therefore educational institution specified in that instrument. Accordingly, cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

12. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 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 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.

13. 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.

14. ‘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.

15. The applicant completed Bachelor of Business (International Hotel Management) degree course between 4 July 2018 and 4 December 2020 which is more than 16 consecutive months of study. Based on the completion latter and applicant’s statement of results the Tribunal is satisfied that the course was completed in a total of more than 16 calendar months. Therefore, the applicant meets the requirements of r.1.15F(1)(b)

16. Based on the evidence before it, including on data published on the CRICOS webpage evidencing that the registered duration of Bachelor of Business (International Hotel Management) degree the applicant completed was 156 weeks, the Tribunal is satisfied that she meets requirements of r.1.15F(1)(a) and (c).

17. Based on the Statement of Completion letter from Le Cordon Bleu Australia, the Tribunal is satisfied that the course the applicant completed was conducted in English language. The applicant therefore satisfies 1.15F (1)(d).

18. Departmental records confirm that the applicant was the holder of a visa authorising the applicant to study during this period.  Accordingly, the applicant meets 1.15F (1)(e).

19. Based on the completion letter issued by Le Cordon Bleu Australia on 18 December 2020 which confirms that the applicant completed her Bachelor of Business (International Hotel Management) degree between 4 July 2018 and 4 December 2020, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, cl 485.231(3) is met.

20. On the basis of 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

21. 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.

    Antonio Dronjic
    Member