Cuarto (Migration)

[2019] AATA 6288

Cuarto (Migration) [2019] AATA 6288 (24 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eduard Ryan Nipas Cuarto

CASE NUMBER:  1908775

HOME AFFAIRS REFERENCE(S):          BCC2018/5718211

MEMBER:Catherine Carney-Orsborn

DATE:24 September 2019

PLACE OF DECISION:  Sydney

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 24 September 2019 at 10:57am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate) visa –Post-Study Work stream –Australian study requirements met – qualification is a registered course –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 5 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 December 2018. 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 (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

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 provided that the course was completed in the last 6 months ending immediately before the day the application was made.

4. 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 on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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.

   Does the applicant hold a specified qualification?

6. Subclause 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 Accounting which is a qualification specified in that instrument.

7. Accordingly, cl.485.231(1) is met.

8. Evidence on the Department file indicates that the applicant has a Bachelor of Accounting from Universal Business School of Sydney.  This is a qualification of a kind specified in the applicable written instrument.

9. Cl.485.231(2) requires that the qualification was conferred or awarded by an educational institutional specified in a relevant written instrument. IMMI 13/031. Universal Business School of Sydney is a CRICOS Provider.

10. Cl. 485.231(3) requires that the applicant’s study for the qualification satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.  

11. The Tribunal obtained the following evidence from Student Services Manager.  The applicant commenced studying for his Bachelor of Accounting on 5 February 2016 and qualified for the award of the Bachelor of Accounting on 17 August 2018.  He lodged his application on 19 December 2018.

12. On the evidence before it the applicant meets cl.485.231.

13. After considering all the evidence before it the Tribunal is satisfied that the applicant has substantially complied with the visa application for the intended stream “Post Study Work Stream”.

14. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

15. Accordingly, cl.485.231(3) is met.

16. 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

17. 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.

    Catherine Carney-Orsborn
    Member