Estrella Cueva (Migration) - [2022] AATA 878

Estrella Cueva (Migration) [2022] AATA 878 (8 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jorge Esteban Estrella Cueva
REPRESENTATIVE:  Ms Ines Flores (MARN: 0100705)
CASE NUMBER:  2113920
HOME AFFAIRS REFERENCE(S):          BCC2019/4123607
MEMBER:R. Skaros
DATE:8 April 2022
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 criterion for a Subclass 485 visa:
·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 08 April 2022 at 1:38pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant ‘completed’ the course within the meaning of r.1.15F within that period – applicant completed the course within the 6 months immediately preceding the date of application – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.231
CASES
Ali v MICMSMA [2021] FCA 1311
Sapkota v MIAC [2012] FCA 981
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 21 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 August 2019. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231.
The delegate was not satisfied that the evidence demonstrated the applicant’s study satisfied the Australian Study requirement in the period of 6 months immediately before the date of the visa application as required by cl 485.231 of Schedule 2 to the Regulations.
The applicant was represented in relation to the review.
The Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.
Does the applicant hold a specified qualification?
Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. 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

Case: [2022] AATA 878
Decision Date: 8 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Estrella Cueva for a Skilled (Provisional) (Class VC) visa, Subclass 485. The central dispute concerned whether Ms. Cueva met the requirements of clause 485.231 of Schedule 2 to the Migration Regulations 1994, specifically regarding the completion of her course within the six months immediately preceding her visa application.

The Tribunal was required to determine whether Ms. Cueva held a qualification specified by the Minister, whether that qualification was conferred by a specified educational institution, and crucially, whether her study met the "Australian study requirement" within the six months prior to her visa application. The "Australian study requirement" itself involves satisfying the Minister that one or more degrees, diplomas, or trade qualifications were completed as a result of registered courses, undertaken over at least 16 calendar months, involving at least two academic years of study, with all instruction in English, and undertaken in Australia on a study-authorising visa.

The Tribunal reasoned that Ms. Cueva held a Bachelor of Engineering (Civil and Environmental Engineering) from the University of Queensland, which satisfied the specified qualification and educational institution criteria under relevant instruments. The key issue then focused on the interpretation of "completed" within the context of regulation 1.15F(2), which defines completion as meeting the academic requirements for the award of the qualification. The Tribunal found that Ms. Cueva had met the academic requirements for her degree. Consequently, the Tribunal concluded that Ms. Cueva met the requirements of clause 485.231.

The Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa for reconsideration by the Minister, with the direction that Ms. Cueva meets the criterion set out in clause 485.231 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 Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.Does the applicant hold a specified qualification? Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds a Bachelor of Engineering (Civil and Environmental Engineering) from the University of Queensland which is a qualification specified in that instrument. Accordingly, cl 485.231(1) is met.Was the applicant’s qualification conferred or awarded by a specified educational institution? Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland which is registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offers courses at the degree level or above, and which is therefore an educational institution specified in that instrument. Accordingly, cl 485.231(2) met.Does the applicant meet the Australian study requirement? Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. 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, ·that were completed in a total of at least 16 calendar months,·that were completed as a result of a total of at least 2 academic years study,·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 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: LIN 19/085.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets cl 485.231. 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 criterion for a Subclass 485 visa:·cl 485.231 of Schedule 2 to the Regulations.R. SkarosSenior Member

Ratio Decidendi

Legal Principle Established

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