Woods (Migration)

[2021] AATA 4165

Woods (Migration) [2021] AATA 4165 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Joanna Woods

CASE NUMBER:  1909576

HOME AFFAIRS REFERENCE(S):          BCC2018/5804608

MEMBER:Wan Shum

DATE:11 October 2021

PLACE OF DECISION:  Sydney

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 11 October 2021 at 4:05pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Locksmith – Australian study requirement – two academic years of relevant study – courses completed within 6 months before visa application – application lodged prior to course completion – college advice of amended completion date – college Christmas closure – decision under review remitted      

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; 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 March 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 December 2018. Visa Class VC contains Subclass 485. 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 visa on the basis that the applicant did not satisfy cl 485.221 of Schedule 2 to the Regulations. The delegate found that the applicant did not satisfy the Australian study requirement in the period of 6 months before the application was made.

4. The applicant appeared before the Tribunal on 6 October 2021 to give evidence and present arguments by videoconference using MS Teams.

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) and secondly, 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). The issue in the present case is whether the applicant meets those requirements.

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 (LIN19/085).

9. The applicant indicated on the visa application form that she had completed the following study in Australia: Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology course from Oceania College of Technology.

10. The certificate was issued on 8 January 2019 and the transcript results dated 8 January 2019 state that the Diploma course started on 28 May 2018 and ended on 28 December 2018.

11. The applicant provided a letter to Immigration from Oceania College of Technology dated 16 April 2019 in relation to her studies which gave the completion date for the Diploma of 28 December 2018. As the visa application was lodged on 24 December 2018, the information provided by the applicant to Immigration is that she had completed the course after the date the visa application was lodged.

12. On review, the applicant provided a copy of a letter from the College confirming that the applicant’s last day at college was 21 December 2018 but again gave the course completion date of 28 December 2018. She also provided an email from the College advising students of the closure over the Christmas period from 21 December 2018 to 7 January 2019. She claims that this is evidence that she had to have finished her course before 21 December 2018, as her visa was ending on the 28 December and the College was not open for any lessons. Given this, the Tribunal contacted the College asking for confirmation as to the date on which the applicant met the academic requirements for the award of the Diploma.

13. In response, the College gave the following details regarding the courses undertaken by the applicant was as follows:

    AUR30612 Certificate III in Light Vehicle Mechanical Technology (CRICOS 086355F)

    Course Start Date: 09/01/2017

    Course End Date: 12/10/2017

    Transition to updated new course qualification.

    AUR30616 Certificate III in Light Vehicle Mechanical Technology (CRICOS 091631D)

    Course Start Date: 12/10/2017

    Date of Completion: 05/01/2018

    Qualification Issued: 31/01/2018

    AUR40216 Certificate IV in Automotive Mechanical Diagnosis (CRICOS 091675C)

    Course Start Date: 08/01/2018

    Date of Completion: 25/05/2018

    Qualification Issued: 23/08/2018

    AUR50216 Diploma of Automotive Technology (CRICOS 091713B)

    Course Start Date: 28/05/2018

    Date of Completion: 28/12/2018

    Qualification Issued: 08/01/2019

14. Based on information from PRISMS, the Certificate III course was registered for 90 weeks; the Certificate IV for 48 weeks and the Diploma for 60 weeks. Having regard to the definition of trade qualification, by reference to ANZSCO, the occupation of Motor Mechanic is in Major Group 3 in ANZSCO and the Tribunal finds that the Certificate qualifications are trade qualifications as defined. The combined total was over 96 weeks so the Tribunal is satisfied that the applicant’s courses were registered for at least 2 academic years in total. It is also satisfied the courses were completed in a total of at least 16 months and were conducted in English.  The applicant’s movement records confirm she held a student visa during the relevant period. She was therefore authorised to study in Australia while undertaking the courses. The Tribunal finds that she meets the Australian study requirement.

15. As to when she met the Australian study requirement, it is necessary to determine when the study was completed. The contract administrator had responded to the Tribunal’s query advising that the applicant “met the academic requirements for the qualification on the date that the qualification was issued.” As the qualification was issued on 8 January 2019, it appeared to the Tribunal that the applicant completed the course on that date.

16. During the hearing, the Tribunal referred to the information which appeared to indicate that the applicant had applied for the visa before the course was completed. The applicant explained that she had completed all College work before the College closure dates and explained what had occurred at the time. The Tribunal advised that it would be sending her a copy of the letter provided from the College and she undertook to contact the College regarding this matter.

    On 11 October 2021, the Tribunal received an email from the current Chief Operating Officer confirming that the applicant “completed her program of study successfully with all assessments, assignments and examinations completed and results finalised on the 21 December 2018.” An explanation was provided regarding the different dates previously provided, and the following explanation was provided: that when the college provides a COE (confirmation of enrolment) it is required under the ESOS ACT to include the total course duration including non-study periods (i.e., public holidays and vacation periods) which occasionally creates some anomalies, as in the enrolment of the applicant which saw her listed nominal date of completion as the 28 December 2018. Mr Charlton explained that being aware of this and taking into account the scheduled Christmas and New Year vacation period of the college, plans were put in place by the teaching and training staff to complete the course of study prior to the close festive season shut down of the college. The Tribunal also received an email from the applicant explaining that she had contacted the College who told her that they did not really understand what was needed from them and that since explaining this to Mr Charlton, he has sent a document outlining the circumstances surrounding the dates for her course.

17. The Tribunal accepts that the use of completion date for the purposes of the Subclass 485 visa may be different to that understood by the College under the ESOS Act and that it may have caused some confusion when providing information about the applicant’s course completion. It finds on the additional information provided on review that the applicant was found to have met the academic requirements for the award of the Diploma qualification by her education provider on 21 December 2018.

18. Given this, the Tribunal finds that the applicant satisfied the Australian study requirement on 21 December 2018. She therefore satisfied the Australian study requirement in the 6 months immediately before the date of the visa application and satisfies cl 485.221.

19. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. 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.

    Wan Shum
    Member