Kim (Migration)

Case [2022] AATA 2970

Kim (Migration) [2022] AATA 2970 (26 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Bokyoung Kim
Mr Seunghoon Lee

REPRESENTATIVE:  Ms Shalini Vellapandian (MARN: 0743002)

CASE NUMBER:  1923353

HOME AFFAIRS REFERENCE(S):          BCC2019/2863060

MEMBER:Katie Malyon

DATE:26 July 2022

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

·cl 485.222 of Schedule 2 to the Regulations.

Statement made on 26 July 2022 at 1:50 pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Chef – Australian study requirement – Advanced Diploma in Hospitality Management – courses closely related to skilled occupation – courses are a pathway leading to a career of Chef – decision under review remitted          

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; rr 1.03, 1.15

CASES

Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
MIBP v Dhillon (2014) 227 FCR 525
Prasad v MIAC [2012] FCA 591
Setiya v MICMSMA [2021] FCCA 544
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281

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 5 August 2019 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, Korean nationals Mrs Bokyoung Kim and Mr Seunghoon Lee, applied for the visas on 4 June 2019. At the time of lodgement of the visa applicants, Class VC contained Subclass 485 only. 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 on the basis that the primary visa applicant, Mrs Kim, did not satisfy cl 485.222 of Schedule 2 of the Regulations because the delegate was not satisfied that her Advanced Diploma of Hospitality Management completed at the Apex Institute of Education (Apex) is closely related to her nominated skilled occupation of Chef ANZSCO 351311.  Additionally, the delegate was not satisfied that Mrs Kim could use her Advanced Diploma of Hospitality Management to satisfy the Australian study requirement as required to meet reg 1.15F(c).

  4. On 19 July 2022, the applicants’ representative Ms Shalini Vellapandian of Focus Migration provided submissions and evidence in support of the review application.

  5. In reaching…

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Details
AGLC
Kim (Migration) [2022] AATA 2970
Case
[2022] AATA 2970
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mrs Kim, who sought to satisfy the criteria for a Subclass 485 Temporary Graduate visa in the Graduate Work stream. The dispute centred on whether Mrs Kim met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Regulations, specifically concerning the Australian study requirement and the relationship between her qualifications and her nominated skilled occupation.

The Tribunal was required to determine two key legal issues. Firstly, whether Mrs Kim satisfied the 'Australian study requirement' as defined by regulation 1.15F(1), which involves completing registered courses in Australia over a specified period and duration, with instruction in English. Secondly, the Tribunal had to assess whether the degree, diploma, or trade qualification used to satisfy this requirement was closely related to Mrs Kim's nominated skilled occupation, as stipulated by clause 485.222.

The Tribunal found that Mrs Kim had completed a Certificate IV in Commercial Cookery and an Advanced Diploma in Hospitality Management at a CRICOS-registered institution. It was satisfied that these courses met the criteria for the Australian study requirement, including being registered, completed within at least 16 calendar months and at least 2 academic years of study, and having all instruction conducted in English. Furthermore, the Tribunal concluded that the Advanced Diploma in Hospitality Management was a pathway leading to a career as a Chef, thus satisfying the requirement that the qualification be closely related to the nominated skilled occupation.

Consequently, the Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with a direction that Mrs Kim meets the criteria under clauses 485.221 and 485.222 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The primary applicant Mrs Kim is seeking to satisfy criteria for grant of a Subclass 485 visa in the Graduate Work stream which includes cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These provisions require that not only must the applicant have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) but the applicant’s degree, diploma or trade qualification used to satisfy that requirement must also be closely related to their nominated skilled occupation (cl 485.222). The issue in the present case is whether the primary applicant, Mrs Kim, meets those requirements.Does the applicant meet the Australian study requirement? 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: (a) that are registered courses; and,(b) that were completed in a total of at least 16 calendar months; and,(c) that were completed as a result of a total of at least 2 academic years study; and,(d) for which all instruction was conducted in English; and,(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are defined terms: see regs 1.03, 1.15F and 2.26AC(6) of the Regulations and cl 485.111 of Schedule 2 to the Regulations. The term ‘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 LIN 19/085. Based on evidence provided, the Tribunal is satisfied that Mrs Kim has undertaken the following qualifications at Apex:1)a Certificate IV in Commercial Cookery completed on 8 April 2019; and,2)an Advanced Diploma in Hospitality Management completed on 11 February 2018. Having reviewed the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal is satisfied that the courses undertaken by Mrs Kim are both registered courses completed at a CRICOS registered institution.[1][1] Courses at Location - NSW - NSW - Apex Institute of Education (Goulburn Street, Sydney) (RTO and ELICOS Operations) Mrs Kim commenced her Advanced Diploma in Hospitality Management on 11 April 2016 and completed the course nearly 2 years later on 11 February 2018. On 9 April 2018, she Kim commenced a Certificate IV in Commercial Cookery which she completed a year later on 8 April 2019. Based on evidence provided, the Tribunal is satisfied that courses undertaken by Mrs Kim were completed in a total of at least 16 calendar months and that they were completed as a result of at least 2 years academic study. Further, information publicly available on the CRICOS Register confirms that the language of instruction for each of these courses was English.[2][2] Course Details - Apex Institute of Education Pty Ltd - Advanced Diploma of Hospitality Management; Course Details - Apex Institute of Education Pty Ltd - Certificate IV in Commercial Cookery

Decision

Reasons for decision

Based on the above findings, the Tribunal finds that the Mrs Kim meets the requirements of cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. 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·cl 485.222 of Schedule 2 to the Regulations.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

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