Huynh (Migration)

[2020] AATA 5797

Huynh (Migration) [2020] AATA 5797 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gia Phuoc Huynh
Mrs Thi Gam Nguyen

CASE NUMBER:  1934226

HOME AFFAIRS REFERENCE(S):          BCC2019/4506050

MEMBER:Kira Raif

DATE:11 December 2020

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 criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

Statement made on 11 December 2020 at 5:40pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – studies completed in the previous 6 months – evidence of further studies completed – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; rr 1.03, 1.15, 2.26

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 19 November 2019 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 9 September 2019. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied the evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application.

3. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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 cl.485.221.

   Does the applicant meet the Australian study requirement?

6. 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.

7. ‘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.

8. In this case, the applicant provided evidence to the Department that he had completed the following three courses at Acumen Education Pty Ltd:

   ·Certificate III in Commercial Cookery between 13 February 2017 and 12 February 2018;

   ·Certificate IV in Commercial Cookery between 27 February 2018 and 10 July 2018; and

   ·Diploma of Hospitality Management between 8 August 2018 and 30 January 2019.

9. The letter of completion for his Diploma in Hospitality Management stated that he completed the course on 30 January 2019. The delegate noted that this was more than 6 months before the application was lodged. Accordingly, the delegate was not satisfied that the applicant met the requirements of cl.485.221.

10. The applicant provided the Tribunal with additional evidence that he had also completed an Advanced Diploma of Hospitality Management at the same education provider. The letter of completion from Acumen Education stated that he commenced this course on 18 February 2019 and successfully completed it on 5 August 2019. The Tribunal accepts this evidence and notes that this was completed in the 6 months immediately before the application was made.

11. The evidence before the Tribunal demonstrates that the courses were registered on CRICOS for the following duration;

    ·Certificate III in Commercial Cookery: 52 academic weeks;

    ·Certificate IV in Commercial Cookery: 64 academic weeks;

    ·Diploma of Hospitality Management: 64 academic weeks; and

    ·Advanced Diploma of Hospitality Management: 104 academic weeks.

12. The applicant completed a total of 284 academic weeks of study for these courses. The evidence further indicates that the applicant collectively completed over 24 calendar months of study for these courses, and that the applicant held a subclass 572 visa permitting him to undertake the relevant study during this period.

13. In relation to the various components of the study requirement, the Tribunal is satisfied on the evidence before it that:

    ·the applicant's Certificates III and IV in Commercial Cookery are Trade Qualifications within the meaning of r.2.26AC(6), the Diploma of Hospitality Management and Advanced Diploma of Hospitality Management are Diplomas within the meaning of r.2.26AC(6), and the Advanced Diploma was  completed in the 6 months immediately before the application was made;

    ·the courses were CRICOS registered courses:

    ·the courses were completed in a total of at least 16 calendar months and as a result of at least 2 years academic study (as per CRICOS registration);

    ·all instruction was in English; and

    ·the applicant held a subclass 572 visa authorising his study in Australia.

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

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 applications for the first and second named applicant to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·cl.485.221 of Schedule 2 to the Regulations

    Kira Raif

    Senior Member