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 remittedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cls 485.221, 485.222CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115STATEMENT 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…
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CaseChat Overview and Summary
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.
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