Garcia Llanos (Migration) - [2017] AATA 2242

Garcia Llanos (Migration) [2017] AATA 2242 (1 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr John Byron Garcia Llanos
Mrs Viviana Maria Valenzuela Palacio
CASE NUMBER:  1611839
DIBP REFERENCE(S):  BCC2016/2220585
MEMBER:Katie Malyon
DATE:1 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 01 November 2017 at 12:47 pm

CASES
Huo v MIMIA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC & Anor [2008] FMCA 409
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 Immigration on 18 July 2016 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 30 June 2016 in the Post-Study Work stream. 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) which includes 2 streams: the Post-Study Work stream; and, the Graduate Work stream. 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 found that the applicants applied in the Post-Study Work stream and refused to grant the visas because the first named applicant, Mr John Byron Garcia Llanos, did not satisfy cl.485.231(3) of Schedule 2 to the Regulations because, based on evidence lodged with the Department, Mr Garcia Llanos completed his Master of Project Management at the Queensland University of Technology (QUT) after his Subclass 485 visa application in the Post-Study Work stream was made. Evidence in the Department’s file includes a Confirmation of Course Completion letter provided by QUT’s Cindy Myers, Manager of Client Services dated 8 July 2016 confirming Mr Garcia Llanos completed his course on 6 July 2016 and an unofficial Academic Record confirming course requirements were completed on 6 July 2016, that is, 6 days after lodgement of his Subclass 485 visa application.
Mr Garcia Llanos appeared before the Tribunal on 19 September 2017 by teleconference from Brisbane to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing by teleconference from Brisbane.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Garcia Llanos is seeking to satisfy the primary criteria for a Subclass…

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: [2017] AATA 2242
Decision Date: 1 November 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Garcia Llanos, who sought to satisfy the primary criteria for a Skilled (Provisional) (Class VC) visa, specifically the Post-Study Work stream of the Subclass 485 visa. The dispute centred on whether Mr. Garcia Llanos met all the requirements stipulated in Schedule 2 of the Migration Regulations.

The Tribunal was required to determine three key issues: firstly, whether Mr. Garcia Llanos held a qualification of a kind specified by the Minister; secondly, whether each qualification was conferred or awarded by an educational institution specified by the Minister; and thirdly, whether the applicant's study for the qualification satisfied the 'Australian study requirement' in the six months immediately preceding the visa application.

The Tribunal found that Mr. Garcia Llanos held a Master of Project Management from QUT, which is a specified qualification at an AQF level 7 or higher, and that QUT is a prescribed educational institution. However, the Tribunal concluded that Mr. Garcia Llanos did not satisfy the Australian study requirement within the relevant six-month period. The Tribunal also considered and rejected a request for an adjournment to await the outcome of a potential Subclass 457 visa application, deeming it unreasonable to defer the decision to a speculative future date.

Consequently, the Tribunal affirmed the decision not to grant Mr. Garcia Llanos the Skilled (Provisional) (Class VC) 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 decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Mr Garcia Llanos is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations and which require that: 1)the applicant holds a qualification or qualifications of a kind specified by the Minister: cl.485.231(1); 2)each qualification must have been conferred or awarded by an educational institution specified by the Minister: cl.485.231(2); and, 3)the applicant’s study for the qualification or qualifications satisfied the ‘Australian study requirement’ in the period of 6 months ending immediately before the day the visa application was made: cl.485.231(3) of Schedule 2 of the Regulations. The issue in this case is whether Mr Garcia Llanos meets the cumulative requirements in cl.485.231 of Schedule 2 of the Regulations. Does the applicant hold a specified qualification? IMMI 13/013 dated 19 March 2013 specifies for the purposes of cl.485.231(1) of Schedule 2 of the Regulations the following qualifications that are the result of study undertaken at the Australians Qualification Framework (AQF) level 7 or higher (emphasis added):·Bachelor Degree;·Bachelor (Honours) Degree;·Masters by Coursework Degree;·Masters by Research Degree;·Masters (Extended) Degree; and/or·Doctoral Degree. Based on evidence in the Department’s file, the Tribunal is satisfied that Mr Garcia Llanos has completed a Diploma of Project Management and an Advanced Diploma of Management at the Australian National Institute of Business & Technology Pty Ltd and as well as a Master of Project Management at QUT. The website for the Commonwealth Register of Institution and Courses for Overseas Students (CRICOS) confirms that QUT’s Master of Project Management (CRICOS 084927B) is a Masters by Coursework Degree. The Tribunal finds Mr Garcia Llanos holds a specified qualification and, accordingly, meets cl.485.213(1) of Schedule 2 to the Regulations. For completion, the Tribunal notes that Mr Garcia Llanos’ Diploma of Project Management and Advanced Diploma of Management are, respectively, qualifications at Level 5 and Level 6 of the AQF levels. These qualifications are not specified in IMMI 13/013 and, accordingly, cannot be considered for the purposes of meeting the criteria in the Post-Study Work stream of cl.485.213(1) of Schedule 2 to the Regulations. Has the qualification been awarded by a prescribed educational institution? IMMI 13/031 dated 19 March 2013 specifies of the educational institutions for the purposes of cl.485.231(2) of Schedule 2. It is not in dispute that QUT is an Australian university registered on CRICOS which offers courses at degree level and above. As such, it is a prescribed institution. Since Mr Garcia Llanos’ Master of Project Management has been awarded by a prescribed institution he meets the criteria in cl.485.213(2) of Schedule 2 to the Regulations. Does the applicant meet the Australian study requirement in the 6 months before the visa application is made?

Decision

Reasons for decision

In this case, the Tribunal is of the opinion that it has afforded Mr Garcia Llanos an opportunity to demonstrate that his employer would sponsor him for a Subclass 457 visa. The Tribunal does not consider it reasonable to adjourn the case to await the outcome of a possible application for permanent residence by Mr Garcia Llanos, noting that the timeframe and outcome of any proposed such application are not yet known. Nor does it consider it reasonable to defer its decision to a speculative date in the future when his employer will lodge a nomination application sponsoring Mr Garcia Llanos for a Subclass 457 visa. DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

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