Intan (Migration)

[2024] AATA 509

Intan (Migration) [2024] AATA 509 (1 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lijanto Intan

REPRESENTATIVE:  Mr Michael Moeidjiantho (MARN: 1572961)

CASE NUMBER:  2202525

HOME AFFAIRS REFERENCE(S):          BCC2021/394709

MEMBER:Warren Stooke AM

DATE:1 March 2024

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

·cl 485.222 of Schedule 2 to the Regulations

Statement made on 1 March 2024 at 9:38am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – studies completed in an academic year – courses completed within 6 months before visa application – college issued advice on corrected completion date – qualification closely related to the nominated skilled occupation – decision under review remitted        

LEGISLATION

Education Services for Overseas Students Act 2000
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 4 February 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 March 2021. 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 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 the Diploma of Hospitality Management completed by the applicant met Regulation 485.221 as the coursework was not completed in the last 6 months ending immediately before the day the application was made. Therefore, the delegate made the finding that the applicant is unable to meet the requirements for subclause 485.221 of the Regulations.

4. The applicant appeared before the Tribunal on 28 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. The applicant confirmed at hearing that he had received and read the decision of the Department, which was provided to the Tribunal with the application for review.

7. The applicant stated that he understood his visa application was refused because he did not meet the deadline for submitting his application based on the completion letter of his course.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.221(b)); and secondly, unless limited circumstances apply, 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(1)). The issue in the present case is whether the applicant meets those requirements.

10. The Tribunal informed the applicant that the issue in this case is whether the applicant has met cl. 485.221, which requires: ‘The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made’.

11. The Tribunal asked the applicant if he understood the issue in this case and the applicant responded: “Yes”.

12. The applicant provided evidence that he was originally granted a Bridging Visa C on 15 March 2021 with condition 8101 (no work) and stated that he was subsequently granted a Bridging Visa A permitting work.

13. The applicant provided evidence to the Department that he had completed the following courses of study:

    ●    Certificate III in Commercial Cookery, at Ashton College: June 2018 to June 2019

    ●    Certificate IV in Commercial Cookery, at Ashton College: July 2019 to January 2020

    ●    Diploma of Hospitality Management, at Ashton College: February 2020 to August 2020

14. The applicant provided evidence of undertaking a PTE English language test on 9 March 2021 with an overall score of 56.

15. The applicant provided evidence of undertaking a skills assessment with TRA and was informed on 17 March 2021 that his assessment was ‘successful’ for the nominated occupations of Chef – ANZSCO Code: 351311 and Cook – ANZSCO Code: 351411.

16. The applicant provided evidence of health insurance with Medibank that commenced on 11 March 2021.

17. The applicant was originally provided with a course completion letter from Ashton College that he completed his Diploma of Hospitality course on 17 August 2020, however, a subsequent letter was provided to the applicant on 21 February 2022 correcting the advice and stating that the date of completion of the course was 29 October 2020. In this regard, the College apologised that due to Covid-19 restrictions in Victoria, the student was unable to attend the campus and submit assessments within the time and that whilst reasonable adjustments were made, this was not reflected in the end date notice for the course.

    Does the applicant meet the Australian study requirement?

18. 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.

19. ‘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).

20. The Tribunal is satisfied, based on the new evidence from Ashton College that confirmed the applicant’s Diploma of Hospitality Management course was completed on 29 October 2020, that the applicant lodged his application for a 485 Visa within 6 months of the completion of the course. In this regard, the applicant completed the Diploma of Hospitality Management on 29 October 2020 and lodged his application for a 485 visa on 12 March 2021, which is within 6 months of completing the course.

21. Further, the Tribunal is satisfied that the applicant completed a trade qualification (as defined: reg 2.26AC(6)) as a result of a courses that were registered courses (as defined: reg 1.03); that were completed (as defined: see reg 1.15F(2) in a total of at least 16 calendar months; as a result of at least 2 academic years (as specified) study; with instruction in the English language at a registered Australian institution and whilst the holder of a Student Temporary Visa.

22. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application Therefore, the applicant meets cl 485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

23. In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation, unless the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 12 March 2021. Accordingly, the applicant is required to satisfy the study requirement in cl 485.222(1).

24. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (regs 1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 13/41 - Register of Instruments - Skilled Visas.

25. In this case, the applicant nominated the occupation of Chef – ANZSCO Code: 351311, which is a skilled occupation specified in IMMI 13/041 - Register of Instruments - Skilled Visas. As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl 485.222.

26. Further, the Tribunal is satisfied on the basis of the assessment of Trades Recognition Australia dated 17 March 2021, that the applicant has been successfully assessed for the nominated occupation of Chef – ANZSCO Code: 351311.

27. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

28. 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

    ·cl 485.222 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member