Lee (Migration)

[2020] AATA 2270

Lee (Migration) [2020] AATA 2270 (6 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Foon Sing Lee

CASE NUMBER:  1725563

HOME AFFAIRS REFERENCE(S):          BCC2017/2744644

MEMBER:Warren Stooke AM

DATE:6 May 2020

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 06 May 2020 at 12:40pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – Diploma of Hospitality – qualification ‘closely related’ to nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F, 2.26AC; Schedule 2, cls 485.221, 485.222

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 Immigration and Border Protection on 11 October 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 August 2017. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.221 and cl.485.222 of Schedule 2 to the Regulations because the applicant did not provide evidence to demonstrate that he completed his course of study, relevant to the nominated occupation, within 6 months of lodging his application.

4. The applicant appeared before the Tribunal on 21 April 2020, by telephone hearing, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. The applicant confirmed to the Tribunal that he had received and read a copy of the delegate’s decision, which was also provided to the Tribunal with his application. The applicant stated that he understood the application was rejected because the letter from the Department stated he had not completed his application before graduating from his course.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 those requirements.

9. The applicant is a 36 year old from Hong Kong, China, who provided evidence that he completed the following courses:

   a.Diploma of Hospitality – completed 26 June 2017;

   b.Certificate IV in Commercial Cookery – completed 20 December 2016;

   c.Certificate III in Commercial Cookery – completed 24 June 2016.

10. On 13 October 2017, the William Angliss Institute confirmed that the applicant completed his Diploma of Hospitality on 26 June 2017 [CRICO: 080892G] and conceded that the original advice that the course was completed on 3 October 2017 was incorrect.

    Does the applicant meet the Australian study requirement?

11. 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.

12. ‘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 - Skilled visas).

13. The evidence provided to the Tribunal by the William Angliss Institute on 13 October 2017 confirmed that the applicant completed the Diploma of Hospitality on 26 June 2017 [CRICO: 080892G].

14. Further, the Tribunal is satisfied that the qualification completed is an approved diploma (as defined: see r.2.26AC(6)) in the 6 months immediately before the application was made on 2 August 2017 and that the registered course is compatible with the requirements of r.1.03.

15. In addition, the qualifications were completed in a total of at least at least 16 months, as required by r.1.15F(2) over at least 2 years of academic study and that the courses were completed in an Australian institution, in the English language.

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

17. 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

18. 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