Sitthiprasert (Migration)

[2021] AATA 3031

Sitthiprasert (Migration) [2021] AATA 3031 (4 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Chittiya Sitthiprasert
Mr Helin Shen

CASE NUMBER:  1835913

HOME AFFAIRS REFERENCE(S):          BCC2018/3298497

MEMBER:Wan Shum

DATE:4 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 04 August 2021 at 12:03pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – date of study completion – completion in the 6 months before the visa application – course completed one day outside the period – date of meeting the academic requirements – second qualification completed after the visa application – decision under review affirmed        

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221; rr 1.03, 1.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 November 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 August 2018. 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.

3. The delegate refused to grant the visas finding that the first named applicant (the applicant) did not satisfy cl 485.221 of Schedule 2 to the Regulations because she did not meet the Australian study requirement.

4. The applicant appeared before the Tribunal on 3 August 2021 to give evidence and present arguments. An interpreter in the Thai and English languages was available to assist.  

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 criterion requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘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 (LIN 19/085).

9. On the visa application form, the applicant nominated the skilled occupation of Chef and indicated that she met the requirement of 2 years study in Australia. She provided details of having the following post-secondary qualifications: a Diploma in Hospitality Management from Victorian Institute of Technology and an Advanced Diploma in Hospitality Management at the same institution. The course dates for the Diploma were given as July 2017 to February 2018 and she indicated that she was still enrolled in the Advanced Diploma which commenced in February 2018.

10. The certificate for the Diploma and the academic transcript are both dated 22 February 2018 with the letter of completion advising that the applicant started the course on 17 July 2017 and completed the course on 22 February 2018.

11. The applicant was asked to provide information to the Department to confirm the date of completion of the Advanced Diploma. The applicant provided a certificate issued by the Victorian Institution of Technology on 16 November 2018 certifying that the applicant had successfully fulfilled the requirements for the Advanced Diploma of Hospitality Management on this date; and an Academic Transcript issued by the Victorian Institution of Technology on 16 November 2018 setting out the subjects completed in obtaining the Advanced Diploma of Hospitality Management. This was confirmed with the education provider.

12. The applicant confirmed at the hearing that she completed the Diploma of Hospitality Management on 22 February 2018 and the Advanced Diploma on 16 November 2018 and that she made the visa application on 24 February 2018.

13. The applicants applied for the visa on 24 August 2018, so the relevant 6 month period immediately before the day the visa application was made starts from 23 February 2018 and ends 23 August 2018. This means that the applicant must have completed the studies in Australia at any point on and between these dates.

14. The applicant wished to explain that she only missed it by one day and did not realise that she had miscalculated. The Tribunal explained that it did not have a discretion and that the legislation was strict about the timing of the application and completion of the qualification. The Tribunal explained that it could not find that she satisfied the requirements even if it is only out by one day. The applicant said that she did not mean to be late and had been concentrating on her PTE but had miscalculated. The applicant said she received the documentation from her school on 16 March 2018. The meaning of ‘completed’ is having met the academic requirements for its award. The Tribunal explained that this was not necessarily the same as when the college notified of the results. The applicant asked for an opportunity to work and use her knowledge in Australia. At the end of the hearing, the Tribunal confirmed that it would be reaching the same conclusion as the Immigration officer.

15. The Tribunal finds that, as the Diploma was completed on 22 February 2018, the applicant completed that qualification more than 6 months prior to the application being made. There is no dispute that the Advanced Diploma was completed after the visa application was made.

16. Given this, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant does not meet cl 485.221.

17. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Wan Shum
    Member