Albuquerque Figueiredo (Migration) - [2020] AATA 5755

Albuquerque Figueiredo (Migration) [2020] AATA 5755 (4 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Juliana Albuquerque Figueiredo
Mr Ismael Da Silva Raupp
CASE NUMBER:  1922912
HOME AFFAIRS REFERENCE(S):          BCC2019/1717302
MEMBER:Jennifer Cripps Watts
DATE:4 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl.485.221 of Schedule 2 to the Regulations
·cl.485.222 of Schedule 2 to the Regulations

Statement made on 4 December 2020 at 11:20am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Plant or Production Engineer – Australian study requirement – Advanced Diploma of Leadership and Management – qualification ‘closely related’ to nominated occupation – ANZSCO tasks description – whether skills acquired from qualification directly transferable to nominated occupation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222, 485.311

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 5 August 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 7 April 2019. Relevantly, 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.
The visa of the first-named applicant (the applicant) was refused because she did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate found that the applicant’s Australian study, Advanced Diploma of Leadership and Management, was not closely related to the nominated occupation of Production or Plant Engineer. The second-named applicant’s visa was refused because he was not a member of the family unit of a person who had been granted and held a Subclass 485 visa, as required by cl.485.311.
On 17 August 2019 the applicants lodged a review application and provided the Tribunal with a copy of the delegate’s decision.
The Tribunal invited the applicants, in writing, to attend a scheduled hearing to give evidence and present arguments and to provide any additional information in support of the application. The applicants attended their Tribunal hearing on 21 December 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Albuquerque Figueiredo (Migration) [2020] AATA 5755
Case: [2020] AATA 5755
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Albuquerque Figueiredo for a Subclass 485 visa in the Graduate Work stream. The applicant sought review of a decision to refuse the visa, which hinged on whether her Australian qualifications met the Australian study requirement and, if multiple qualifications were relied upon, whether they were closely related to her nominated occupation of Plant or Production Engineer. The Tribunal considered written submissions, oral evidence, and information from departmental and tribunal files.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the criteria for the Subclass 485 visa, specifically cl.485.221 and 485.222 of Schedule 2 to the Regulations. This involved assessing whether the applicant met the definition of the 'Australian study requirement' as set out in r.1.15F(1) of the Regulations, which requires completion of registered courses in Australia, totalling at least 16 calendar months and at least two academic years of study, with all instruction in English, undertaken while holding a visa authorising study. The Tribunal also had to consider the definition of 'completed' in relation to qualifications and the duration of an 'academic year'.

The Tribunal found that the applicant's Brazilian qualification was not relevant to the Australian study requirement. However, it determined that the applicant's Diploma of Project Management, completed on 7 January 2018 after 49 weeks of study, and her Advanced Diploma of Program Management, completed on 10 February 2019 after 49 weeks of study, satisfied the requirements of cl.485.221 and 485.222. The Tribunal concluded that the applicant met these specific criteria.

Consequently, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in cl.485.221 and 485.222 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 and 485.222 of Schedule 2 to the Regulations. The issue on review, which is the same that on which the visa was refused, is whether the applicant’s Australian qualifications meet the Australian study requirement and, if there is more than, are each closely related to the nominated skilled occupation. The Tribunal has considered information relevant to the material issues on review contained in the Department and Tribunal files, together with oral evidence given at the scheduled hearing and any other information considered to be relevant. The applicant provided detailed and well-reasoned written submissions prior to the hearing about the matters material to the issue on review, that is, whether the applicant’s qualifications meet the Australian study requirements and are closely related to her nominated occupation, Plant or Production Engineer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 233513.Does the applicant meet the Australian study requirement? 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. ‘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 (IMMI LIN 19/085). The applicant is a national of Brazil and in 2014 was awarded a Bachelor of Production Engineering by Faculdades Integradas Espirito, Santenses, Vitoria, Brazil. This qualification is acknowledged but cannot be used to meet the Australian study requirement. In support of the visa application, the applicant is relying on two Australian qualifications awarded by Australian Pacific College, CRICOS Provider 01331F:i.Diploma of Project Management, completed 7 January 2018 (49 weeks)ii.Advanced Diploma of Program Management 10 February 2019 (49 weeks)

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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·cl.485.222 of Schedule 2 to the Regulations.Jennifer Cripps WattsMember

Ratio Decidendi

Legal Principle Established

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