Santi (Migration) - [2020] AATA 5541

Santi (Migration) [2020] AATA 5541 (12 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Tatiane Santi
CASE NUMBER:  1906604
HOME AFFAIRS REFERENCE(S):          BCC2018/5167569
MEMBER:R. Skaros
DATE:12 November 2020
PLACE OF DECISION:  Sydney
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.

Statement made on 12 November 2020 at 11:16am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – 6 months immediately before the visa application – date on which results are finalised by the education institution – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26; Schedule 2, cl 485.221
CASES
Sapkota v MIAC [2012] FCA 981
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 6 March 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 20 November 2018. 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 was not satisfied the evidence demonstrated that the applicant’s study satisfied the Australian Study Requirement in the period of 6 months immediately before the date of the visa application as required by cl.485.221.
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.
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 includes cl.485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the ‘Australian study requirement’, as defined in r. 1.15(F) in the 6 months immediately preceding the day the visa application was made.
The issue in the present case is whether the applicant meets cl.485.221.
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…

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

Case: [2020] AATA 5541
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. The central dispute concerned whether the applicant met the 'Australian study requirement' as defined in regulation 1.15F of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had completed one or more registered courses in Australia, conducted in English, over a total of at least 16 calendar months and at least two academic years, while holding a visa that permitted study. The definition of 'completed' in relation to a qualification meant meeting the academic requirements for its award, and an 'academic year' was understood to be at least 46 weeks.

The Tribunal found that the applicant had provided sufficient evidence to demonstrate the completion of a Certificate III in Early Childhood Education and Care and a Diploma of Early Childhood Education and Care. For the Certificate III, the evidence indicated completion between 10 October 2016 and 26 May 2017. For the Diploma, a student completion letter stated the course commenced on 29 May 2017 and concluded on 5 October 2018, with the applicant receiving an award for it. Based on this evidence, the Tribunal concluded that the applicant met the requirements of clause 485.221.

Consequently, the Tribunal remitted the applicant's visa application for reconsideration by the Minister, with a direction that the applicant had met the Australian study requirement.

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 includes cl.485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the ‘Australian study requirement’, as defined in r. 1.15(F) in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets cl.485.221.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, 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: LIN19/085. The Tribunal has had regard to the material on the Department file as well as that given to the Tribunal. In this case the applicant completed a Diploma of Early Childhood Education and Care and a Certificate III in Early Childhood Education and Care at MEGT Institute. In respect of the Certificate III course the applicant provided the Department a copy of her Certificate which was dated 23 June 2017 and stated that she fulfilled the requirements of that course. She also provided: a copy of her ‘Record of Competencies Achieved’ dated 23 June 2017; a copy of her Confirmation of Enrolment stating that the course was conducted over 33 weeks and completed in English; and a letter of completion dated 4 February stating that the course commenced on 10 October 2016 and was completed on 26 May 2017. The delegate did not raise any concerns in relation to the information contained in this material and it is not in contention that the applicant undertook this course between 10 October 2016 and was completed on 26 May 2017. The Tribunal also accepts these matters on the evidence. In respect of the Diploma course, the applicant provided a copy of her Confirmation of Enrolment stating that the course was conducted over 92 weeks and completed in English and a copy of her Diploma dated 15 October 2018. She also provided a Record of Competencies Achieved dated 15 October 2018 which stated that the course started on 29 May 2015 and ended on 5 October 2018. Relevantly, the applicant also provided a letter from MEGT Institute entitled ‘Student Completion Letter’ which was dated 16 October 2018 and stated that the course started on 29 May 2017 and ended on 5 October 2018. The letter stated: “During this period, the student completed these courses and received an award for each.”

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221. 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 RegulationsR. SkarosSenior Member

Ratio Decidendi

Legal Principle Established

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