Tinoco Vilaca (Migration)

[2024] AATA 1605

Tinoco Vilaca  (Migration) [2024] AATA 1605 (9 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafael  Tinoco Vilaca

CASE NUMBER:  2208914

HOME AFFAIRS REFERENCE(S):          BCC2021/1289690

MEMBER:Amanda Mendes Da Costa

DATE:9 May 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.

Statement made on 9 May 2024 at 11.11am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Graduate Work stream – applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26, Schedule 2, cls 485.221, 485.231

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 8 June 2022 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 22 June 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231(3) of Schedule 2 to the Regulations and therefore did not meet cl 485.221 because the qualification claimed by the applicant to satisfy the Australian Study requirements as his study was not completed as a result of a total of at least 2 years of academic study.

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 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?

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 19/085.

9. The applicant lodged an application for the visa on 22 June 2021 and declared in his application form that he had completed the following course:

   ·Diploma of Hospitality Management with the course undertaken from 29 April 2019 to 23 April 2021

10. The applicant provided a letter of completion for the Diploma of Hospitality Management course which states that the applicant commenced the course on 2 November 2020 and concluded on 7 May 2021.

11. The Tribunal notes that the Diploma of Hospitality Management is registered on the Commonwealth Register of Institutions and Course for Overseas Student for 56 weeks which is short of the minimum 92 weeks (2 academic years) as required by reg 1.15F(c).

12. The documents provided by the applicant for the purpose of the review include the following:

    ·Letter of Confirmation of Course Completion, Imagine Education Australia, dated 9 June 2022 which states that the applicant completed a Certificate III in Commercial Cookery with the Commencement date of 29 April 2019, an End date on which the study requirements were met of 31 January 2020 and a course duration of 40 weeks.

    ·Letter of Confirmation of Course Completion, Imagine Education Australia, dated 9 June 2022 which states that the applicant completed a Certificate IV in Commercial Cookery with the Commencement date of 30 March 2020, an End date on which the study requirements were met of 18 September 2020 and a course duration of 25 weeks.

    ·Letter of Confirmation of Course Completion, Imagine Education Australia, dated 18 June 2021 which states that the applicant completed a Diploma of Hospitality Management with the Commencement date of 2 November 2020, an End date on which the study requirements were met of 7 May 2021 and a course duration of 27 weeks.

    ·Confirmations of enrolment for the Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, and the Diploma of Hospitality Management, which are each registered on CRICOS.

    ·Certificate of Qualification issued by Imagine Education confirming the applicant has fulfilled the requirements for SIT30816 Certificate III in Commercial Cookery dated 31 January 2020.

    ·Certificate of Qualification issued by Imagine Education confirming the applicant has fulfilled the requirements for SIT40516 Certificate IV in Commercial Cookery dated 16 June 2021.

    ·Certificate of Qualification issued by Imagine Education confirming the applicant has fulfilled the requirements for SIT50416 Diploma of Hospitality Management dated 17 May 2021.

    ·Email from Rowan Hinton, Campus General Manager at Imagine Education dated 26 April 2024, confirming the adjusted duration of the courses completed by the applicant as a result of credit transfers.  

    ·Written submissions dated 2 May 2024.

    Findings

13. The Tribunal notes that reg 2.26AC(6) provides that a diploma includes a diploma, or an advanced diploma under the Australian Qualifications Framework (AQF) that is awarded by a body authorised to award diplomas of those kinds. The Tribunal accepts the statement in the letter of course completion for the Diploma of Hospitality which confirms that the study for this course was delivered within the AQF and is nationally recognised.

14. The Tribunal further notes that reg 2.26AC(6) provides that a trade qualification includes a qualification under the AQF of at least a Certificate III level for a skilled occupation in Major Group 3 in the Australian and New Zealand Standard of classification of Occupations (ANZSCO). The Tribunal is satisfied that the occupation of Chef is (and was at the date of the visa application) classified as a skilled occupation in Major Group 3 (Technicians and Trade Workers), Sub-Major Group 35 (Food Trade Workers), Minor Group 351 (Food Trade Workers) and Unit Group 3513 (Chefs).

15. The Tribunal accepts the statement contained in the letters of completion for the Certificate III in Commercial Cookery and Certificate IV in Commercial Cookery which confirm that the courses for these certificates were delivered within the AQF  and are nationally recognised.

16. Based on the evidence before it, the Tribunal is satisfied that The applicant has completed a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, and a Diploma in Hospitality Management, each of which are trade qualifications as defined in reg 2.26AC(6) and are registered courses as defined in reg 1.103.

17. The Tribunal finds that the above courses were completed in a total of at least 16 months: reg 1.15F(2), as a result of a total of at least 2 years academic years and for which all instruction was conducted in English.

18. The applicant Tribunal is further satisfied that the applicant completed the above courses whilst holding a visa authorising study.

19. Given that the applicant’s study was completed on 7 May 2021 the Tribunal is satisfied that the Australian study requirement in the 6 months immediately before the day the application was made.

20. Based on the above findings the Tribunal finds the applicant meets the requirements of cl 485.231(3) and therefore meets cl 485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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