Martinez Guerrero (Migration)

[2020] AATA 4835

Martinez Guerrero (Migration) [2020] AATA 4835 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Juan Camilo Martinez Guerrero
Mrs Laura Catalina Aleman Pardo

CASE NUMBER:  1829032

HOME AFFAIRS REFERENCE(S):          BCC2018/3053588

MEMBER:K. Chapman

DATE:21 October 2020

PLACE OF DECISION:  Brisbane

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.

Statement made on 21 October 2020 at 11:01am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Civil Engineering Draftsperson – Australian study requirement – Associate Degree in Civil Engineering – ‘trade qualification’ – skilled occupation in Major Group 3 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65

Migration Regulations 1994 (Cth), rr 1.15F, 1.15I, 2.26AC; Schedule 2, cl 485.221

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 13 September 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant, Mr Juan Camilo Martinez Guerrero, applied for the visa on 14 August 2018, including the second named applicant in the application. 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.

3. The delegate refused to grant the visas because the first named applicant (hereafter ‘the applicant’) did not satisfy cl.485.221 of Schedule 2 to the Regulations, as he apparently did not satisfy the Australian study requirement in the period of 6 months immediately before the day the visa application was made. Of note, the applicant successfully completed a Certificate III in Employment and Training, and an Associate Degree in Civil Engineering, at TAFE Queensland between January 2016 and July 2018. His nominated skilled occupation for the visa is Civil Engineering Draftsperson (ANZSCO 312211). The delegate determined that the Associate Degree in Civil Engineering was not a qualification sufficient for the applicant to satisfy the Australian study requirement.

4. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act. Accordingly, for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 of Schedule 2 to the Regulations. This requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221). The issue in the present case is whether the applicant meets this requirement.

   Does the applicant meet the Australian study requirement?

6. 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.’

7. ‘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.

8. As is relevant to the present review, r.2.26AC(6) provides:

   trade qualification means:

   (a)…

   (b)…

   (c) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.          

9. The term ‘skilled occupation’ is defined in r.1.15I(1) to be an occupation of a kind specified by the Minister in an instrument in writing. Pursuant to instrument IMMI 18/051, the occupation of Civil Engineering Draftsperson (ANZSCO 312211) is so specified. On balance, the Tribunal is satisfied that the qualification of Associate Degree in Civil Engineering is a trade qualification within the meaning of r.2.26AC(6), given it is of an appropriate level for a skilled occupation in Major Group 3 in ANZSCO.

10. According to documents from TAFE Queensland submitted by the applicant, he completed the academic requirements for the Associate Degree in Civil Engineering on 4 July 2018. This completion date is within the 6 months immediately before the Subclass 485 visa application was made. Further, the applicant’s study took place over a period in excess of 16 calendar months and as a result of at least 2 academic years of study. TAFE Queensland is a duly authorised education provider, the relevant program of study is a registered course in accordance with r.1.03, and all instruction for this study was conducted in the English language. Further, the applicant held a Student visa at all relevant times during the completion of his study. Accordingly, the Tribunal is satisfied that the applicant meets the Australian study requirement for the purpose of the Subclass 485 visa.

11. Following careful consideration of the evidence, the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

12. The second named applicant will also have her claims for the Subclass 485 visa reassessed by the Department given the outcome of this decision.

    DECISION

13. 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.

    K. Chapman
    Member