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 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.
The Tribunal notes that in Ali v MICMSMA [2021] FCA 1311 the Court relied on existing authority in Venkatesan v MIAC [2008] FMCA 409 and Sapkota v MIAC [2012] FCA 981 and at [39] held that the date of completion is not what the university considers it should be, yet rather what Parliament says it is. Accordingly, at [48] the Court in Ali v MICMSMA [2021] FCA 1311 accepted that the language of reg 1.15F(2) referring to the ‘academic requirements’ of a degree, is comfortably met by study assessed as satisfactory and grounding the award of a degree.
There is no suggestion that Mr Sathian’s Advanced Diploma of Hospitality Management (Commercial Cookery) could have been completed prior to 12 September 2020. In fact, the evidence before both the delegate and the Tribunal indicates that he completed the Certificate IV in Commercial Cookery in late August 2020, and has taken extra units to convert his certificates to an Advanced Diploma standard during the protracted Covid-19 lockdowns in Melbourne in 2020.
In any event, Mr Sathian, on having his application refused by the delegate, was able to obtain from Le Cordon Bleu Australia revised course completion letters, with a completion date of 12 December 2020 clearly spelled out at the top of the letter. Mr Sathian has, for the intervening years, attained and maintained employment as a Chef at the highly regarded Bistro Guillaume in Melbourne.
The Tribunal is very satisfied, based on the evidence available at review, that Mr Sathian completed his Advanced Diploma of Hospitality Management (Commercial Cookery) within 6 months of the day immediately before the day he made this visa application.
The Tribunal is also satisfied that the 3 courses undertaken by Mr Sathian consecutively, all with Le Cordon Bleu Australia, were registered courses completed in a total of at least 16 calendar months (2 October 2018 to 12 December 2020) as a result of at least 3 years of academic years of study, for which all instruction was conducted in English whilst he held a student visa.
The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant meets cl 485.221.
Is the qualification ‘closely related’ to the nominated occupation?
In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation, unless the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 12 March 2021. Accordingly, the applicant is required to satisfy the study requirement in cl 485.222(1).
An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (regs 1.03 and 1.15I). The relevant instrument for this purpose is LIN 19/085.
In this case, the applicant nominated the occupation of Chef, which is a skilled occupation specified in LIN 19/085.
Mr Sathian holds a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, and an Advanced Diploma of Hospitality Management (Commercial Cookery) and he has nominated the occupation of Chef. The Tribunal is satisfied that these each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, and so the applicant meets cl 485.222.
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 Sheargold
Member