Mejia Duque (Migration) [2020] AATA 2697 (6 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Ruben Dario Mejia Duque
CASE NUMBER: 1710627
HOME AFFAIRS REFERENCE(S): BCC2017/976253
MEMBER:Roslyn Smidt
DATE:6 April 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 06 April 2020 at 2:16pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Mechanical Engineer – Australian study requirement – courses closely related to the nominated skilled occupation – general leadership and management courses – academic requirements for Professional Engineer in Australia – upper time limit for study requirement – ANZSCO definition of the occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 458.221, 485.222CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
Manik v MIAC [2012] FMCA 149
MIAC v Kamruzzaman [2009] FCA 1562
MIBP v Dhillon (2014) 227 FCR 525
Prasad v MIAC [2012] FCA 591
Seema v MIAC (2012) 203 FCR 537
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
Wang v MIMIA [2005] FCA 843STATEMENT 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 and Border Protection on 5 May 2017 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 13 March 2017. 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 applicant’s Advanced Diploma of Leadership and Management and Diploma of Project Management were not closely related to the nominated occupation of Mechanical Engineer ANZSCO 233512. The delegate found that the applicant’s Diploma of Engineering (Oil and Gas) was not relevant to his consideration as it had been completed more than 6 months prior to his visa application on 5 May 2017
The applicant appeared before the Tribunal on 31 January 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
In support of his application the applicant provided a…
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CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the applicant met the requirements of clauses 485.221 and 485.222 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant's completed courses were "closely related" to his nominated skilled occupation of Mechanical Engineer, and if there was an upper time limit for meeting the Australian study requirement. The applicant's representative argued that the delegate erred by suggesting the Diploma of Engineering (Oil and Gas) failed to meet the requirements due to time limits, and by failing to consider that leadership and management courses, as well as project management, were closely related to the core knowledge and tasks of a Mechanical Engineer as defined by the ANZSCO code.
The Tribunal found that the applicant did not satisfy either clause 485.221 or 485.222. The reasoning focused on the interpretation of "closely related" in the context of the ANZSCO definition for Mechanical Engineer. While acknowledging the importance of continuing professional development, the Tribunal concluded that the Diploma of Project Management and the Advanced Diploma of Leadership did not meet the criteria of being closely related to the nominated occupation. Consequently, as the applicant failed to satisfy these essential criteria for the Subclass 485 visa, the Tribunal affirmed the decision not to grant the visa.
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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Ratio Decidendi
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