Pino Villavicencio (Migration) - [2017] AATA 1605

Pino Villavicencio (Migration) [2017] AATA 1605 (12 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Vanessa Pia Pino Villavicencio
CASE NUMBER:  1711253
DIBP REFERENCE(S):  BCC2017/1589072
MEMBER:Denise Connolly
DATE:12 September 2017
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 12 September 2017 at 4:12pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate (Post Study Work) stream – Australian study requirement – Applicant provided evidence of degree completion date – cl.485.231(3) met
LEGISLATION
Education Services for Overseas Students Act 2000, s.9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231, cl.485.111, r.1.15F(1), rr.1.03, 1.15F, 2.26AC(6),
CASES
Sapkota v MIAC [2012] FCA 981
Griffith University v Tang (2005) 221 CLR 99

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 15 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 3 May 2017. Visa Class VC contains Subclass 485. 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 the applicant.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant 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).
The applicant appeared before the Tribunal on 8 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fellow colleagues Dr Philip Hughes and Dr Marion Fajardo.
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 (Post Study Work) stream which includes cl.485.231 of Schedule 2 to the Regulations. This clause requires that the applicant holds a qualification(s) of a kind specified by the Minister (cl.485.231(1)), that each qualification(s) was conferred or awarded by a specified educational institution (cl.485.231(2)) and the applicant’s study for the qualification(s) satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.231(3)). The issue in the present case is whether the applicant meets those requirements.
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…

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 1605
Decision Date: 12 September 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Pino Villavicencio for a Skilled (Provisional) (Class VC) visa, specifically within the Graduate (Post Study Work) stream. The central dispute concerned whether the applicant satisfied the Australian study requirement as stipulated by clause 485.231 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria outlined in clause 485.231, which requires the applicant to hold a specified qualification, have that qualification awarded by a specified educational institution, and have completed study for that qualification satisfying the Australian study requirement in the six months immediately preceding the visa application. The definition of the Australian study requirement, as set out in regulation 1.15F, involves completing registered courses in Australia over a minimum duration and academic year equivalent, with all instruction in English, while holding a study-authorised visa.

The Tribunal reasoned that the applicant had provided evidence of completing a Doctor of Philosophy (Agriculture) at the University of Sydney. While the applicant initially declared a completion date of 31 October 2016, a subsequent completion letter from the University indicated a completion date of 4 May 2017. The delegate had previously determined that because the applicant completed her course after lodging her visa application, she did not meet the Australian study requirement in the preceding six months. However, the Tribunal found that the applicant had met the requirements of clause 485.231, focusing on the evidence of the qualification itself and its completion date in relation to the Australian study requirement.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant satisfies the criterion under clause 485.231. The Minister is to consider the remaining criteria for the 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 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 (Post Study Work) stream which includes cl.485.231 of Schedule 2 to the Regulations. This clause requires that the applicant holds a qualification(s) of a kind specified by the Minister (cl.485.231(1)), that each qualification(s) was conferred or awarded by a specified educational institution (cl.485.231(2)) and the applicant’s study for the qualification(s) satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.231(3)). The issue in the present case is whether the applicant meets those requirements. 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, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000. Regarding cl.485.231(1) the Minister has specified the qualifications in the instrument in writing , IMMI 13/013. It specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework level seven or higher:(a)Bachelor Degree;(b)Bachelor ( Honours) Degree;(c)Masters by Coursework Degree;(d)Masters by Research Degree;(e)Masters (Extended) Degree and/or;(f)Doctoral Degree. Regarding cl.485.231(2) the Minister has specified in an instrument in writing, IMMI13/031, that Australian universities and non university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offer courses at degree level and above. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when applying for the visa the applicant declared she had completed a Doctor of Philosophy (Agriculture) at the University of Sydney (the University) in the period 30 July 2012 to 31 October 2016. However the applicant subsequently provided a completion letter from the University stating she completed the course on 4 May 2017. The delegate found that as the applicant completed her course after making the visa application, on 3 May 2017, she did not meet the Australian study requirement in the period of 6 months immediately before the visa application was made.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of 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.Denise ConnollyMember

Ratio Decidendi

Legal Principle Established

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