Guevara (Migration)

[2017] AATA 862

Guevara (Migration) [2017] AATA 862 (30 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Angelo Guevara
Mrs Shirley Guevara
Master Grant Guevara

CASE NUMBER:  1615229

DIBP REFERENCE(S):  BCC2016/2240372

MEMBER:Catherine Carney-Orsborn

DATE:30 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.221

Statement made on 30 May 2017 at 2:57pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work Stream – Australian study requirement – Study requirements completed 6 months immediately preceding date of visa application

LEGISLATION

Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.221, cl 485.222

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 Immigration on 15 September 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 July 2016. 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 primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the first named applicant (the applicant) did not satisfy cl.485.221 of Schedule 2 to the Regulations because they did not satisfy the Australian study requirement as the Certificate IV in Commercial Cookery qualification was not completed in the period of 6 months ending immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 22 May 2017 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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 include cl.485.221 and 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 preceding 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?

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, ‘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 (IMMI 09/040).

10. The applicant lodged his application for a Temporary Graduate subclass 485 visa on 2 July 2016.

11. The applicant supplied to the Department a copy of his award certificate for the Diploma of Hospitality which stated he fulfilled the requirements on 19 November 2014. 

12. He further supplied a copy of his award certificate for the Certificate IV in Commercial Cookery which stated he had fulfilled the requirements on 1 August 2016.

13. The applicant supplied to the Tribunal an academic Transcript which states he completed the last subject on 24 June 2016 and a letter from the cookery Teacher which stated that he completed all units for Certificate IV in Commercial Cookery by the 24 June 2016.  He stated that there was a delay in grading his results and issuing his award and that this was due to administrative reasons.

14. The applicant submitted that he satisfied the requirements of the course when he completed the academic requirements.  This date is 24 June 2016.

15. The Tribunal requested the educational institute to verify the completion date. The educational institute provided a letter stating that the applicant had a Certificate IV in Commercial Cookery conferred on 1 August 2016. The Tribunal put this to the applicant pursuant to s359AA at the hearing. The Tribunal explained the relevance and that the applicant did not have to address the inconsistency between the documents immediately. The applicant’s representative requested further time to consider the correspondence from the education provider. The Tribunal granted further time for a written response.

16. The applicant provided a further document from the education provider. 

17. The Tribunal has considered all the documents it has before it.

18. The Tribunal is satisfied on the evidence before it that the education provider considered the applicant had completed all the requirements for the Certificate IV in Commercial Cookery on 24 June 2016.  The Tribunal is further satisfied that the award was conferred on 1 August 2016 but considers the completion date was 24 June 2016.  As the application was lodged on 2 July 2016 the Tribunal is satisfied he meets the study requirement in the 6 months immediately preceding the date of application.

19. On the evidence before it the Tribunal is satisfied that the course is a registered course, that it was conducted in English and that it meets the study requirements.

20. 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.

21. 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

22. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.221

    Catherine Carney-Orsborn
    Member