GABBI (Migration)

[2018] AATA 2469

GABBI (Migration) [2018] AATA 2469 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjeet Singh GABBI

CASE NUMBER:  1710617

DIBP REFERENCE(S):  BCC2017/995780

MEMBER:Susan Trotter

DATE:25 May 2018

PLACE OF DECISION:  Brisbane

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 25 May 2018 at 5:23pm.

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant satisfied the ‘Australian study requirement’ in the six months preceding the date of application – Courses undertaken of appropriate level and duration – Most recent qualification completed in preceding 6 months – Decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.15F, 2.26AC(6), Schedule 2, cl 485.221

CASES
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC & Anor [2008] FMCA 409

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection (the Minister) on 5 May 2017 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 14 March 2017. 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 on the basis that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the ‘Australian study requirement’ in the six months ending immediately before the day the application was made because the study relied upon by the applicant had not been completed in a total of at least 16 months as required.

4. The applicant applied to the Tribunal on 18 May 2017 seeking review of the delegate’s decision.

5. The applicant was represented in relation to the review by his registered migration agent.

6. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal.

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

   ISSUES

8. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which criteria includes cl.485.221 of Schedule 2 to the Regulations.

9. This criterion requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the visa application was made.

10. 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 one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:

    (a)  are registered courses; and

    (b)  were completed in a total of at least 16 calendar months; and

    (c)  were completed as a result of a total of at least two academic years study; and

    (d)  for which all instruction was conducted in English; and

    (e)  the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

11. ‘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). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

12. Regulation 2.26AC(6) provides as follows:

    degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:

    (a)  the entry level to the course leading to the qualification is:

    (i)   in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    (ii)   in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    (iii)  in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    (iv)  in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    (b)  in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

    diploma means:

    (a)  an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or

    (b)  a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.

    …

    trade qualification means:

    (a)  an Australian trade qualification obtained as a result of the completion of:

    (i)   an indentured apprenticeship; or

    (ii)   a training contract;

    that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:

    (iii)  part-time formal training at a technical college or a college of technical and further education; and

    (iv)  employment within the meaning of:

    (A)  an industrial award under a law of the Commonwealth or of a State or Territory; or

    (B)  a law of a State or Territory dealing with commercial or industrial training; or

    (b)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

    (c)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

13. Regulation 1.15F(2) defines the term ‘completion’ of a degree, diploma or trade qualification as follows:

    (2) In this regulation:

    completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

    Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

14. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC & Anor [2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. The term ‘completed’ was also considered in Sapkota v MIAC [2012] FCA 981 where Cowdroy J held the relevant date for determining when a student has completed the academic requirements is ‘the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution’. The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.

15. It follows that the issues to be determined by the Tribunal are:

    (a)  does the applicant meet the Australian study requirement? And, if so,

    (b)  was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application? And, if so,

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant listed the following Australian study in his visa application:

    Certificate IV in Commercial Cookery     Queensford College of Australia            21/11/16 to 10/03/17

    Advanced Diploma of Management        New England College of Technology      01/12/14 to 31/05/15

    Diploma of Management          New England College of Technology      26/05/14 to 23/11/14

17. The applicant provided the following documents in support of his application:

    (a)  a confirmation of enrolment, award certificate and transcript of results in relation to the Certificate IV confirming his start and end dates of study as stated;

    (b)  a final results transcript, award certificate and letter of completion in relation to the Advanced Diploma confirming his start and end dates of study as stated;

    (c)  a final results transcript, award certificate and letter of completion in relation to the Diploma confirming his start and end dates of study as stated.

18. The applicant has subsequently provided to the Tribunal the following documents:

    (a)  a letter from Queensford College dated 30 August 2017 confirming that he was enrolled in a Certificate IV in Commercial Cookery from 6 July 2015 to 13 November 2016 and from 21 November 2016 to 10 March 2017;

    (b)  a Certificate certifying that the applicant fulfilled the requirements for a Certificate IV in Commercial Cookery on 10 March 2017;

    (c)  a Transcript of Results for a Certificate IV in Commercial Cookery showing a start date of 6 July 2015 and an end date of 13 November 2016;

    (d)  a Transcript of Results for a Certificate IV in Commercial Cookery showing a start date of 21 November 2016 and an end date of 10 March 2017;

    (e)  an email from Queensford College dated 10 May 2018 confirming that the Certificate IV in Commercial Cookery (CRICOS Code 084086E) had a duration of 62 weeks.

    Issue 1 - Does the applicant meet the Australian study requirement?

19. Records from the Provider Registration and International Students Management System (PRISMS) show the following courses, and course duration dates, completed by the applicant in Australia:

    Certificate IV in Commercial Cookery          06/07/15 to 13/11/16

    Certificate IV in Commercial Cookery          21/11/16 to 10/03/17

    Advanced Diploma of Management  01/12/14 to 31/05/15

    Diploma of Management  26/05/14 to 23/11/14

20. The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met.

21. The Tribunal is satisfied and finds that the Diploma of Management and Advanced Diploma of Management courses are diplomas as defined by r.2.26AC(6) and can be taken into account.

22. As regards the Certificate IV in Commercial Cookery, the definition of ‘trade qualification’ includes:

    (b)a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

    (c)a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

23. A Certificate IV is higher than a Certificate III in the Australian Qualification Framework (AQF)[1].

    [1] >

    The Queensford College course description for a Certificate IV in Commercial Cookery states ‘On successful completion of the Certificate IV Commercial Cookery course, you will be eligible to work as a commercial cook in Hotels, Restaurants, clubs, cafes, and other similar organisations’.[2] The applicant’s nominated occupation is ‘chef’. The occupation of both Chef and Cook are classified by ANZAC as skilled occupations in Major Group 3.[3] The Tribunal is therefore satisfied and finds that the Certificate IV in Commercial Cookery is a trade qualification as defined by r.2.26AC(6) and therefore is a qualification that can be taken into account in determining the applicant has satisfied the Australia study requirement.

    [2] >

    Having regard to all evidence and material before it, including the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and the PRISMS records, the Tribunal finds that the courses are all registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.

24. Based on the documentary evidence before the Tribunal, the applicant was undertaking study for these courses as follows:

    Certificate IV in Commercial Cookery 06/07/15 to 13/11/16

    and from

    21/11/16 to 10/03/17

    Advanced Diploma of Management             01/12/14 to 31/05/15

    Diploma of Management  26/05/14 to 23/11/14

25. The applicant’s study was therefore as a result of courses that were completed in a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met.

26. Information from the Queensford College indicates that the duration of the Certificate IV in Commercial Cookery (CRICOS code 084086E) was 62 weeks. Information from the Australian Skills Quality Authority indicates that the duration of the Advanced Diploma of Management (CRICOS code 071937G) was 26 weeks and the Diploma of Management (CRICOS code 071936G) was 26 weeks. The applicant’s courses were therefore of a duration of 104 weeks in total (that is, at least two academic years). Further, the Tribunal is satisfied on the evidence before it that all instruction was in English for the courses. The Tribunal is therefore satisfied and finds that the requirements of rr.1.15F(1)(c) and r.1.15F(1)(d) are met in relation to the three courses together.

27. Based on records from the Department of Immigration and Border Protection (the Department), the Tribunal is satisfied that the applicant held the following visa between 26 May 2014 and 23 November 2014, 1 December 2014 and 31 May 2015, 6 July 2015 and 13 November 2016 and 21 November 2016 and 10 March 2017:

    Subclass 573 Higher education sector visa                   4 February 2014 to 15 March 2017

28. The Tribunal notes that one of the conditions to which a Subclass 573 visa is subject is that the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires.[4] In the applicant’s case, in order to continue to satisfy the primary criteria for the visa, he must have continued to have a confirmation of enrolment in a course of study for the award of, relevantly a bachelor’s degree, or be enrolled in or be the subject of the current offer of enrolment in a course of study specified by the Minister. The applicant was enrolled in a Bachelor of Information Technology, as part of his intended course of study. PRISMS records shows that that enrolment was cancelled on 12 May 2014. It follows that from 12 May 2014, the applicant, although the holder of a Subclass 573 visa, no longer continued to satisfy the primary criteria for that visa. Nonetheless, r.1.15F(1)(e) only requires that the applicant be ‘the holder of a visa authorising the applicant to study’ throughout the period of his study. He was throughout the period of his study a holder of Subclass 573 visa which is a visa authorising study. The Tribunal therefore finds that r.1.15F(1)(e) is met.

    [4] Condition 8516.

29. As paragraphs (a) to (e) of r.1.15F are met, the Tribunal finds that the applicant meets the Australian study requirement.

    Issue 2 - Was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application?

30. The Tribunal is therefore satisfied and finds that the applicant meets the Australian study requirement. In considering whether that requirement was met in the six months immediately preceding the date of the visa application, the Tribunal notes that the Department’s policy guidelines contained in its Procedures Advice Manual (PAM3) states as follows in relation to the Australian study requirement under the Graduate Work stream:

    When must the study have been undertaken

    …

    ·     if the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the VC-485 application was made.

31. The applicant’s most recently completed qualification was the Certificate IV in Commercial Cookery, which the Tribunal has found is an eligible qualification. Based on the documentary evidence before it,[5] the Tribunal is satisfied and finds that the applicant completed that qualification on 10 March 2017, that is, within the period of six months immediately before the day of the visa application, 14 March 2017.

    [5] An email dated 16 May 2018 from Queensford College confirming that it decided the academic requirements for the qualification had been met on 10 May 2017.

32. Therefore cl.485.221 is met.

    Conclusion

33. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221.

34. Consistent with paragraph 8.2 of the Tribunal President’s Direction – Conducting Migration and Refugee Reviews (30 June 2015) – which provides that, as a general rule, where the delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters, the Tribunal confined its review to consideration of cl.485.221.

35. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

36. 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.

    Susan Trotter
    Member