Cuesta Moreno (Migration) - [2021] AATA 1650

Cuesta Moreno (Migration) [2021] AATA 1650 (19 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Mardeli Cuesta Moreno
CASE NUMBER:  1915312
HOME AFFAIRS REFERENCE(S):          BCC2019/1316855
MEMBER:Michelle East
DATE:19 March 2021
PLACE OF DECISION:  Perth
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

Statement made on 19 March 2021 at 1:21pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Chemical Engineer – Australian study requirements – Diploma and Advanced Diploma of Leadership and Management – qualification ‘closely related’ to nominated occupation – Australian and New Zealand Standard classification of Occupations (ANZSCO) description – ability to manage projects, lead teams, deal with stakeholders and effectively communicate – 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
CASES
Constantino v MIBP [2013] FCA 1301
Talha v MIBP [2015] FCAFC 115
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 on 24 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 March 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 (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 delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to her nominated application.
Before the hearing the applicant provided comprehensive and detailed submissions. The Tribunal therefore was able to make a decision on the papers without the need for a hearing.
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 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…

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: Cuesta Moreno (Migration) [2021] AATA 1650
Case: [2021] AATA 1650
Decision Date: 19 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Cuesta Moreno for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant nominated Chemical Engineer as her skilled occupation and sought to satisfy the primary criteria for the visa, specifically clauses 485.221 and 485.222 of Schedule 2 to the Regulations. These clauses require the applicant to have satisfied the 'Australian study requirement' in the six months prior to her visa application and that each qualification used to meet this requirement must be closely related to her nominated occupation.

The Tribunal was required to determine whether the applicant met these two crucial requirements. Specifically, it needed to assess if the applicant had completed sufficient study to satisfy the 'Australian study requirement' as defined by regulation 1.15F(1), which involves completing registered courses totalling at least 16 calendar months and at least two academic years of study, conducted in English, while holding a visa authorising study in Australia. Furthermore, the Tribunal had to consider whether the applicant's qualifications, a Diploma and an Advanced Diploma of Leadership and Management, were 'closely related' to her nominated occupation of Chemical Engineer.

The Tribunal found that the applicant had provided evidence of completing a Diploma of Leadership and Management (52 weeks) and an Advanced Diploma of Leadership and Management (49 weeks). While both courses were registered, conducted in English, and undertaken in Australia, the Tribunal noted that the minimum requirement for two academic years of study equated to at least 92 weeks. It concluded that relying solely on the Advanced Diploma would not satisfy the 'Australian study requirement'. However, the Tribunal ultimately found that the applicant did meet the requirements of both cl.485.221 and cl.485.222.

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

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 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.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. The applicant has provided evidence of completing a Diploma of Leadership and Management on 8 October 2017 and an Advanced Diploma of Leadership and Management on 23 November 2018. The applicant has also provided a Skills Assessment Report from Engineers Australia dated 18 March 2019 which stated she was assessed as meeting the requirements for the qualification of Professional Engineer ANZSCO 233111. She was assessed as Skill Level 1. Based on the evidence provided on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that the duration of the Advanced Diploma course is 49 weeks and for the Diploma course is 52 weeks and that all instruction for both courses was in English. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study, that is, at least 92 weeks consistent with the relevant instrument, the Tribunal is not satisfied that relying on her Advanced Diploma of Leadership and Management alone would satisfy the ‘Australian study’ requirement in the 6 months immediately preceding the day she made her visa application.

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.Michelle EastMember

Ratio Decidendi

Legal Principle Established

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