Gurjant Singh (Migration)

[2019] AATA 2321

Gurjant Singh (Migration) [2019] AATA 2321 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Gurjant Singh

CASE NUMBER:  1808767

HOME AFFAIRS REFERENCE(S):           BCC2017/4968329

MEMBER:Mary Sheargold

DATE:22 March 2019

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 criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations.

Statement made on 22 March 2019 at 5:02pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – delegate erred in assessing the application against the Post-Study Work stream – Australian study requirement – Certificate IV in Building and Construction (Building) – Certificate III in Bricklaying/Blocklaying – course duration – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 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 9 March 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 27 December 2017. 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). 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 applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because he did not provide evidence that he had completed a course in the period of 6 months ending immediately before the day the visa application was made. The Tribunal notes that the delegate erred in assessing the application against cl.485.231 in the Post-Study Work stream, as the applicant applied for the Subclass 485 visa in the Graduate Work stream. The relevant consideration for the Tribunal is thus whether the applicant satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made as required under cl.485.221 of Schedule 2 to the Regulations.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. This clause 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 that requirement.

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘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).

   Did the applicant complete a degree, diploma or other trade qualification in the 6 months immediately before the application was made?

9. The applicant applied for the visa on 27 December 2017.  He has provided the Tribunal with a letter of completion from Holmesglen Institute, dated 9 March 2018, indicating that he completed a Certificate IV in Building and Construction (Building) on 30 June 2017.  Accordingly, the Tribunal finds that he completed a Certificate IV in Building and Construction (Building) in the 6 months immediately before the visa application was made.

   Was the specified qualification as a result of a course that was a registered course: r.1.03

10. Registered course means a course of education or training provided by, relevantly, an institution registered under Division 3 of Part 2 of the ESOS Act to provide the course to overseas students.  The Tribunal is satisfied that Holmesglen Institute is an institution suitably registered.

    Was the specified qualification as a result of at least 2 academic years of study?

11. The first specified qualification, Certificate IV in Building and Construction (Building), CRICOS course code 073684G, is registered on CRICOS as a course of 48 weeks’ duration.  The applicant completed the course, which resulted in conferral of the qualification.  The second specified qualifications, Certificate III in Bricklaying/Blocklaying, CRICOS course code 089529J, is registered on CRICOS as a course of 48 weeks’ duration. The applicant completed the course, which resulted in conferral of the qualification.  The total duration of the specified qualifications is 96 weeks, which is greater than the required total of at least 92 weeks.

    Was the specified course completed in a total of at least 16 calendar months?

12. The applicant has provided the Tribunal with a letter of completion from Holmesglen Institute dated 9 March 2018, stating that he commenced the Certificate IV in Building and Construction (Building) on 11 July 2016 and completed the course on 30 June 2017.  The applicant provided the Department with a letter of completion from Holmesglen Institute dated 1 February 2018, stating that he commenced the Certificate III in Bricklaying/Blocklaying on 1 July 2015 and completed the course on 30 June 2016.  Accordingly, the Tribunal is satisfied that he completed the specified course in a total of at least 16 calendar months.

    Was all instruction conducted in English?

13. The Tribunal is satisfied that all instruction was in English.

    Did the applicant hold a visa authorising study during the relevant period?

14. Departmental records indicate that the applicant was granted a Subclass 573 student visa on 3 April 2014, which expired on 30 August 2017.  Based on this information, the Tribunal is satisfied that the applicant held a visa authorising study during the relevant period.

15. 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.

16. 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

17. 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.

    Mary Sheargold
    Member