Stival (Migration)

[2023] AATA 4271

Stival (Migration) [2023] AATA 4271 (7 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Vanessa Stival

CASE NUMBER:  2116480

HOME AFFAIRS REFERENCE(S):          BCC2020/2202837

MEMBER:Amanda Mendes Da Costa

DATE:7 December 2023

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.

Statement made on 7 December 2023 at 11.22am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – study duration of at least 92 weeks – courses completed within 6 months before visa application – decision under review remitted    

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221; rr 1.03, 1.15, 2.26

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 29 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 August 2020. 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.221(3) of Schedule 2 to the Regulations because she had not completed 2 academic years of Australian study as part of the ‘Australian study requirement’.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 include cl 485.221 of Schedule 2 to the Regulations. This 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 that requirement.

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘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/085.

9. The Tribunal notes that in her visa application form, the applicant declared that she had completed the following courses:

   ·Certificate III in early Childhood Education and Care from 18 March 2019 to 1 November 2019.

   ·Diploma of Early Childhood Education and Care from 18 November 2019 to 26 June 2020.

10. The applicant provided letters of completion for both courses, which confirmed that the applicant undertook her studies for each course as declared in her application.

11. Based on the information provided to the Department, the delegate found that the total combined study for her courses was 90 weeks which was short of the minimum requirement (reg 1.15F(1)(c)) of 92 weeks.

12. The Tribunal notes that the applicant has provided it with additional documentation, including the following:

    ·Letter of confirmation of course completion (dated 1 November 2021) from Suzie Noonan, General Manager , Benowa Campus, Imagine Education Australia.

    ·Record of results for the applicant dated 14 June 2021, Imagine Education Australia.

13. The Tribunal is satisfied that the letter of confirmation and record of results show that the applicant commenced studies for a Diploma of Leadership and Management at Imagine Education Australia on 24 August 2020 and completed the course on 4 June 2021, a duration of 36 weeks. They further indicate that all study for this course was delivered in the English language and within the Australian Qualification Framework and was studied as a full-time load.

14. Based on the information provided to both the Department and Tribunal, the Tribunal is satisfied that the total combined study undertaken by the applicant was 126 weeks.

15. The Tribunal further finds that under reg 1.15F(1) of the Regulations, the applicant satisfies the ‘Australian study requirement’ as she 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.

16. Accordingly, 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.

17. Based on 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

18. 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.

    Amanda Mendes Da Costa
    Member