Sathian (Migration) - [2024] AATA 1450

Sathian (Migration) [2024] AATA 1450 (18 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rajat Sathian
REPRESENTATIVE:  Mr Prakash Srinivasan (MARN: 0960121)
CASE NUMBER:  2204644
HOME AFFAIRS REFERENCE(S):          BCC2021/38079
MEMBER:Mary Sheargold
DATE:18 April 2024
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; and
·cl 485.222 of Schedule 2 to the Regulations.

Statement made on 18 April 2024 at 10:46am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – Advanced Diploma of Hospitality Management (Commercial Cookery) – date of completion – qualification ‘closely related’ to nominated occupation – Chef – 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
Ali v MICMSMA [2021] FCA 1311
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC [2008] FMCA 409
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 23 March 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 March 2021. 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 (Cth) (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 485.221 of Schedule 2 to the Regulations because he did not demonstrate that he had completed his course of study relied upon to meet the Australian study requirement in the 6 months immediately before the day he made his application.
The applicant appeared before the Tribunal on 18 April 2024 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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(a)) or, in the 12 months…

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: [2024] AATA 1450
Decision Date: 18 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, by Mr. Sathian. The dispute centred on whether Mr. Sathian met the criteria for the Graduate Work stream of this visa, specifically concerning the Australian study requirement and the relationship between his qualification and nominated occupation. The decision was made by Member Mary Sheargold of the Tribunal.

The legal issues before the Tribunal were whether Mr. Sathian satisfied the 'Australian study requirement' as defined in the Regulations, and whether the qualification he relied upon, an Advanced Diploma of Hospitality Management (Commercial Cookery), was 'closely related' to his nominated skilled occupation as a Chef. The Regulations stipulated that the Australian study requirement involves completing registered courses in Australia, totalling at least 16 calendar months and two academic years of study, with all instruction in English, undertaken while holding a study-authorising visa.

The Tribunal reasoned that Mr. Sathian had provided evidence of completing a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, and an Advanced Diploma of Hospitality Management. While the delegate had raised concerns about the precise completion date for the Advanced Diploma, the Tribunal found that the course completion letter indicated completion in December 2020, which was sufficient given the visa application date of March 2021. The Tribunal concluded that Mr. Sathian met the requirements of both clause 485.221 (Australian study requirement) and clause 485.222 (qualification closely related to nominated occupation).

Consequently, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that Mr. Sathian met the criteria under cl 485.221 and cl 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(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.221(b)); and secondly, unless limited circumstances apply, 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(1)). The issue in the present case is whether the applicant meets those requirements.Does the applicant meet the Australian study requirement? Under reg 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 regs 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 (reg 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 or courses registered under the Education Services for Overseas Students Act 2000 (Cth): LIN 19/085. Mr Sathian has provided evidence to the Department and to the Tribunal that he completed culinary studies at Le Cordon Bleu Australia, achieving a Certificate III in Commercial Cookery on 7 December 2019, a Certificate IV in Commercial Cookery, and an Advanced Diploma of Hospitality Management on 12 December 2020. The delegate raised concerns that the course completion letter for the Advanced Diploma of Hospitality Management, supplied by Le Cordon Bleu Australia, did not clearly state the exact date on which Mr Sathian had met the requirements for the award of the diploma, and the application was refused on this basis. However, that letter did make plain that he had completed studies in December 2020, and this visa application was made in March 2021.

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; and·cl 485.222 of Schedule 2 to the Regulations.Mary SheargoldMember

Ratio Decidendi

Legal Principle Established

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