Lacaden (Migration)

[2021] AATA 2347

Lacaden (Migration) [2021] AATA 2347 (11 May 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Bernabeth Oblas Lacaden
Mr Youngsun Jung

CASE NUMBER:  1904733

DIBP REFERENCE(S):  BCC2018/5345325

MEMBER:Wan Shum

DATE OF DECISION:  11 May 2021

DATE CORRIGENDUM

SIGNED:17 May 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The date ‘7 May 2021’ on the cover page of the decision should read ‘11 May 2021’.

Statement made on 18 May 2021 at 11:12am

Wan Shum
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Bernabeth Oblas Lacaden
Mr Youngsun Jung

CASE NUMBER:  1904733

HOME AFFAIRS REFERENCE(S):          BCC2018/5345325

MEMBER:Wan Shum

DATE:7 May 2021

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 May 2021 at 11:32am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –course was completed in a total of at least 16 calendar months – Australian study requirements met – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 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 12 February 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 November 2018. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.221 of Schedule 2 to the Regulations because she did not meet the Australian study requirement.

4. The applicants were represented in relation to the review by a registered migration agent.

5. On review, the Tribunal conducted a check on the PRISMS database for information regarding the course undertaken.

6. In reaching its decision 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, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 criterion requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

8. 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.

9. ‘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).

10. On the visa application form, the applicant nominated the skilled occupation of Chef and indicated that she met the requirement of 2 years study in Australia. She provided details of having a number of qualifications with the most recent being a Certificate IV in Commercial Cookery from Australian International College Pty Ltd. The course dates were given as 24 April 2017 to 21 September 2018.

11. The qualification appears to meet the definition of ‘trade qualification’ in r.2.26AC(6), as it is a qualification under the AQF of at least the Certificate III level (being a Certificate IV qualification) for the skilled occupation of Chef (refer section 8 of IMMI 18/051) which is an occupation in ANZSCO Major Group 3 (the ANZSCO code for Chef is 351311).

12. The delegate found that the Certificate IV course was only registered on CRICOS for a duration of 90 weeks and thus found that the applicant had not completed 2 academic years of Australian study as that course was not registered for a duration of at least 92 weeks as defined.

13. However, on review, the CRICOS website lists the course as having 102 weeks in duration.[1] The Tribunal also conducted a check on the PRISMS database which includes past and present information of courses and providers registered on CRICOS.

    [1] (accessed 7 May 2021)

14. The information indicates that the Certificate IV course was registered on CRICOS from 27 April 2016 for a duration of 102 weeks.
    

15. It is unclear to the Tribunal the evidence on which the delegate concluded that the course was registered for the duration of 90 weeks. The Tribunal thus finds that r.1.15F(1)(c) is met.

16. The Tribunal finds that the course was completed (as defined) in a total of at least 16 calendar months, as the applicant commenced the course on 24 April 2017 and finished the course on 21 September 2018 which is approximately 17 months.

17. Furthermore, AIC is registered as a provider and the Tribunal finds that the qualification was the result of a course that was a registered course for which all instruction was conducted in English. The applicant held a Subclass 572 visa from 20 April 2015 until 30 November 2018, so she completed the course whilst holding a visa authorising study.

18. The Tribunal thus finds that the applicant has completed a trade qualification on 21 September 2018. As the application was made on 29 November 2018, 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.

19. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. 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

    Wan Shum
    Member