Reyes (Migration) - [2021] AATA 1588

Reyes (Migration) [2021] AATA 1588 (14 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Allan Jacob Reyes
CASE NUMBER:  1911289
HOME AFFAIRS REFERENCE(S):          BCC2019/507255
MEMBER:Michelle East
DATE:14 May 2021
PLACE OF DECISION:  Perth
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 14 May 2021 at 1:29pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirements – qualifications closely related to nominated occupation –qualification in business and nominated occupation of chef – comparison of units of course and job tasks in ANZSCO description – relationship more than merely complementary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cls 485.221, 485.222
CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 17 February 2019. 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.
The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirements were closely related to his nominated occupation.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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) 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Reyes (Migration) [2021] AATA 1588
Case: [2021] AATA 1588
Decision Date: 14 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream. The applicant's eligibility for this visa depended on meeting specific criteria, including the Australian study requirement and the requirement that their qualifications be closely related to their nominated occupation. The primary dispute before the Tribunal was whether the applicant had satisfied these two crucial requirements.

The Tribunal was tasked with determining two key legal issues. Firstly, whether the applicant had met the "Australian study requirement" as defined by the Migration Regulations, which involves completing registered courses in Australia for a specified duration and under particular conditions. Secondly, the Tribunal had to assess whether each degree, diploma, or trade qualification relied upon by the applicant was "closely related" to their nominated skilled occupation, which in this instance was Chef.

In its reasoning, the Tribunal examined the applicant's evidence of completed courses, including a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality Management, and an Advanced Diploma of Business. The Tribunal found that the Advanced Diploma of Business, with a duration of 100 weeks, satisfied the minimum requirement of 92 weeks for two academic years of study, thus meeting the Australian study requirement under regulation 1.15F(1). The Tribunal also concluded that the applicant's qualifications were closely related to the nominated occupation of Chef, finding the relationship between the units of study and the job tasks to be more than merely complementary. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant had met 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 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) 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.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:·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. ‘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, ‘two academic years’ is specified by the Minister in LIN 19/085 to mean at least a total of 92 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000. The applicant provided evidence by way of letters of completion, transcripts and qualification certificates relating to a number of declared Australian study courses, including:25/07/2016 – 23/06/2017 Certificate III in Commercial Cookery24/07/2017 – 8/12/2017 Certificate IV in Commercial Cookery12/02/2017 – 22/06/2018 Diploma of Hospitality Management23/07/2018 – 7/12/2018 Advanced Diploma of Business All the courses were completed at the Canberra Institute of Technology. The applicant has nominated the occupation of Chef (ANZSCO 351311) in his application for which he was assessed as successful by Trades Recognition Australia on 18 March 2019. Based on the evidence on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds the duration of the Advanced Diploma of Business is 100 weeks. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study, that is, at least 92 weeks consistent with the relevant instrument, the Tribunal is satisfied that relying on the Advanced Diploma of Business alone satisfies the ‘Australian study’ requirement in the 6 months immediately preceding the day he made his visa application.

Decision

Reasons for decision

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 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.Michelle EastMember

Ratio Decidendi

Legal Principle Established

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