Wang (Migration)

[2022] AATA 4830

Wang (Migration) [2022] AATA 4830 (1 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wen-Han Wang

REPRESENTATIVE:  Ms Ying Ying Wong (MARN: 0958103)

CASE NUMBER:  1934481

HOME AFFAIRS REFERENCE(S):          BCC2019/4148810

MEMBER:Ian Berry

DATE:1 December 2022

PLACE OF DECISION:  Brisbane

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 01 December 2022 at 11:48am

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03. 1.15, Schedule 2, cl 485.221

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 18 November 2019 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 21 August 2019. 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 of Schedule 2 to the Regulations because the applicant did not provide evidence of the completion of her qualification of Diploma of hospitality.

4. The applicant was represented in relation to the review.

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 (cl 485.221).

   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 registered under the Education Services for Overseas Students Act 2000 (Cth) (LIN 19/085).

9. The applicant obtained the following qualifications:

   a.Certificate IV in Commercial Cookery between 20 April 2017 and 30 June 2018 a CRICOS registered course consisting of 78 academic weeks.

   b.Certificate IV in Patisserie between 16 July 2018 and 20 December 2018, a CRICOS registered course consisting of 78 academic weeks.

   c.Diploma of Hospitality completed between 11 February 2019 and 30 June 2019, consisting of 52 academic weeks.

10. As the applicant made application on 21 August 2019, she needed to complete the Australian study requirement between 20 February 2019 and 20 August 2019.  She has satisfied the 6-monthly requirement.

11. The applicant’s studies were completed in a total of at least 16 calendar months and cumulatively achieved her study in at least 2 academic years as disclosed above.  All instruction was conducted in English and she achieved the qualifications while holding a TU-500 student visa.

12. 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.

13. 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

14. 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.

    Ian Berry
    Member