CUDIAMAT (Migration)

[2020] AATA 1870

CUDIAMAT (Migration) [2020] AATA 1870 (11 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs IS KATRINA VALERIO CUDIAMAT

CASE NUMBER:  1818841

HOME AFFAIRS REFERENCE(S):          BCC2018/1400235

MEMBER:Roslyn Smidt

DATE:11 May 2020

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.485.221 of Schedule 2 to the Regulations

Statement made on 11 May 2020 at 1:42 pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –Australian study requirement – two letters from education provider – statement of completion of course dated after application, making qualification ineligible – statement of fulfilment of requirements dated before application, making qualification eligible – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations (Cth), r 1.15F, Schedule 2, cl 485.221

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 14 June 2018 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 26 March 2018. Visa Class VC contains Subclass 485. 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).

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.22 of Schedule 2 to the Regulations because the available evidence indicated that she had not completed an appropriate qualification while studying in Australia.

4. The applicant appeared before the Tribunal on 30 April 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 of Schedule 2 to the Regulations which requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets this requirement.

8. 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.

   9.    ‘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 LIN 19/085.

   10.      In this case the applicant completed a Certificate III in Childhood Education and Care between February 2016 and February 2017 and a Diploma in Early Childhood Education and Care between April 2017 and March 2018. Both courses were completed at the St George and Sutherland Community College (SGSCC International). SCSCC International is registered on the Commonwealth Register of Institutions and Courses for Overseas Students as an appropriate institution under the Education Services for Overseas Students Act. The CRICOS states that the courses completed by the applicant have a duration of 52 weeks and are taught in English. Department records confirm that the applicant held an appropriate visa during the time she studied in Australia.

   11.      In is clear from this that the applicant meets Australia study requirement as set out above. The issue which remains to be determined is whether she completed this requirement within the 6 months prior to applying for the visa.

   12.      In support of her initial application the applicant provided a letter dated 29 May 2018 from SGSCC International which is headed “statement of courses completion” and states that the Diploma in Early Childhood Education and Care course ended on 6 April 2018, which is after she applied for the visa on 26 March 2018.  She also provided a document from SGSCC International dated 13 March 2018 which states that she fulfilled the requirements for the Diploma in Early Childhood Education and Care on 13 March 2018. It is unclear when the latter document was provided to the Department.

   13.      At the hearing the Tribunal asked the applicant why she had two letters from SGSCC International which appeared to give conflicting information. She said that the former gave the date on which the course ended, but she had met all of the requirements for the course prior to that time as set out in the latter document. This explanation is reflected in the wording of the relevant documents and the Tribunal accepts that it is correct.

   14.      The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

   CONCLUSION

   15.      On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

   16.      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

   Roslyn Smidt
   Member