Holt (Migration)

[2023] AATA 256

Holt (Migration) [2023] AATA 256 (12 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Danielle Sandra Holt
Mr David Holt
Mr Reece Daniel McGowan

CASE NUMBER:  2004913

HOME AFFAIRS REFERENCE(S):          BCC2019/6887025

MEMBER:Antonio Dronjic

DATE:12 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 12 January 2023 at 11:19am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – two academic years or 92 weeks of study – completed diploma with registered duration of 90 weeks – intention to apply for another subclass visa – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1)(c), Schedule 2, cls 485.221, 485.311

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 26 February 2020 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 December 2019. 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 (Cth) (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 visas because the first named applicant (the applicant) did not satisfy r.1.15F(1)(c) for the purposes of meeting the requirements of cl.485.221 of Schedule 2 to the Regulations. The delegate found that the applicant did not complete two academic years of Australian study.

4. The applicants sought review of the delegate’s decisions on 10 March 2020 and with their applications submitted a copy of the primary decision record. On 26 March 2020 the applicants submitted documentary evidence and submissions.  The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

5. On 19 June 2020 the applicants submitted documentary evidence and submissions.  The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.

6. On 23 September 2020 the applicants submitted documentary evidence and submissions.  The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.

7. On 30 November 2022, the Tribunal wrote to the applicants advising them that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a hearing on 12 January 2023.

8. On 2 January 2023 the applicant submitted documentary evidence and submissions.  The list of documents submitted to the Tribunal is attached to this decision record as Attachment D.

9. On 11 January 2023 the applicant submitted documentary evidence and submissions.  The list of documents submitted to the Tribunal is attached to this decision record as Attachment E.

10. The applicants appeared before the Tribunal on 12 January 2023 to give evidence and present arguments.   

11. The applicant is 45 years of age and a citizen of United Kingdom. She first came to Australia as the holder of a Student visa in January 2018. The applicant lodged her Subclass 485 Graduate Work stream visa on 27 December 2019 and nominated Registered Nurse as her occupation.

12. The Tribunal noted that in her visa application form she has nominated an occupation of a registered nurse (Critical Care and Emergency). However, her skills assessment of 19 December 2019 indicate that her assessment was for a different occupation – Enrolled Nurse (ANZSCO 411411). Ms Holt confirmed that her occupation is in fact Enrolled Nurse. She gave evidence that in March 2022 she applied for a Subclass 491 visa but subsequently withdrew that application. She intends to re-apply for that visa in March 2023, after she accumulates three years of relevant experience.

13. In her evidence Ms Holt confirmed that she completed a Diploma of Nursing at TAFE Queensland between 29 January 2018 and 11 December 2019. She conceded in her evidence that, according to Commonwealth Register of Institutions and Course for Overseas Students (CRICOS), the registered duration of Diploma of Nursing was 90 weeks.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 cl 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 before 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?

16. Under reg 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.

17. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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.

18. The applicant is seeking to rely on completion of Diploma of Nursing at TAFE Queensland between 29 January 2018 and 11 December 2019.

19. CRICOS confirms that the registered duration of the Diploma of Nursing course completed at TAFE Queensland was 90 weeks. Accordingly, the Tribunal finds that the registered course undertaken by the applicant in Australia have a total registered duration of 90 weeks. Consequently, it finds that the applicant has not completed a total of at least 2 academic years study, or a total of 92 weeks study, in Australia as required by r. 1.15F(1)(c).

20. Therefore, the Tribunal finds that, as the applicant does not meet the requirements of r.1.15F(1)(c), she does not satisfy the Australian study requirement set out in regulation 1.15F. The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant does not meet cl.485.221.

21. Based on the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

22. To meet cl 485.311, the secondary applicants must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 485 visa. As the first named applicant does not satisfy the primary criteria for a Subclass 485 visa, the Tribunal finds that the second and the third named applicants do not satisfy cl 485.311. There is no evidence before the Tribunal that the second or third named applicants meet the primary criteria in his own right.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List (26 MARCH 2020)

    ·Employment letter from Wongaburra (aged care service)

    oAppointment as a casual enrolled nurse commencing 25 March 2020

    Attachment B: Document List (19 JUNE 2020)

    ·Confirmation of study letter

    oHLT54115 Diploma of Nursing with TAFE Queensland

    oCommencement on 29 January 2018

    oConclusion on 10 December 2019

    ·Academic Transcript

    ·Diploma of Nursing issued by TAFE Queensland [dated 11 December 2019]

    Attachment C: Document List (23 SEPTEMBER 2020)

    ·Employment letter from Wongaburra (aged care service)

    oOffering a permanent part-time position commencing 21 October 2020

    Attachment D: Document List (2 JANUARY 2023)

    ·Confirmation of employment letter [dated 13 October 2021]

    ·Duplicate of ATTACHMENT C document (offering permanent part-time position)

    ·Character statements:

    oMichelle Barker - enrolled nurse at Signature Care Jimboomba [dated 31 December 2022]

    oLucinda Harding – previous and current colleague [undated]

    oKerry Knox – enrolled nurse at Jimbooba Community Aged Care [dated 30 December 2022]

    oKarren Elgood – colleague [undated]

    oJaime Austin – personal care assistant at Signature Care Jimbooba Community Aged Care [undated]

    oHeather LaBudde – current colleague [dated 1 January 2023]

    oFern Clark – friend and colleague [undated]

    oCynthia Haldane – friend and colleague [dated 2 December 2022]

    oBelinda George – colleague [undated]

    oLenise Rawle and Daniel Hawkins – neighbours [undated]

    ·Employment letter for David Holt and Reece McGowan [dated 13 December 2022]

    oLetter from Garry Bertie of Logan Glass (business development manager)

    oDavid Holt employed as a truck driver/loader since 29 January 2018

    oReece McGowan employed as a glass process worker since 18 October 2021

    ·Professional reference letter for Danielle Holt [dated 12 December 2022]

    oIssued by Janice Boyton (residential manager) at Jimbooba Community Aged Care

    ·Complaint letter sent to TAFE Queensland from Danielle Holt [undated]

    oComplaint letter seeking a full refund from TAFE QLD based on poor education and treatment received

    Attachment E: Document List (11 JANUARY 2023)

    oWork reference letter issued by Jimbooba Community Aged Care dated 10 January 2023; and

    oCharacter reference letter from Tracy Cook