Ramirez Moreno (Migration) - [2019] AATA 5911

Ramirez Moreno (Migration) [2019] AATA 5911 (19 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Rosastri Daily Ramirez Moreno
Mr Oscar Gabriel Preciado Gordillo
CASE NUMBER:  1817988
HOME AFFAIRS REFERENCE(S):          BCC2018/1907750
MEMBER:Denise Connolly
DATE:19 December 2019
PLACE OF DECISION:  Sydney
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
·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 19 December 2019 at 11:26am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – Australian study requirement – oral evidence provided –study/training must fall within set of skills – qualifications closely related to nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.221, 485.222, r 1.15F
CASES

Tahla v MIBP [2015] FCAFC 115

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 1 June 2018 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 1 May 2018. 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 at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied the Diploma and Advanced Diploma of Leadership and Management on which the applicant sought to rely to meet the Australian study requirement are closely related to the nominated occupation Environmental Engineer (ANZSCO 233915).
The applicants appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer Mr Caetano Mantovanni.
The applicants were represented in relation to the review by their registered migration agent.
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 Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the Australian study requirement in the 6 months immediately preceding the day the application was made (cl.485.221) and secondly that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case…

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.

Continue reading Ramirez Moreno (Migration)

Details

AGLC: Ramirez Moreno (Migration) [2019] AATA 5911
Case: [2019] AATA 5911
Decision Date: 19 December 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream, brought by the applicant, Ramirez Moreno. The dispute centred on whether the applicant satisfied the Australian study requirement and the requirement that her Australian qualifications be closely related to her nominated occupation of Environmental Engineer. The decision was made by Denise Connolly, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant had satisfied the Australian study requirement within the six months preceding her visa application, as stipulated by clause 485.221 of Schedule 2 to the Regulations, and whether the qualifications she relied upon to meet this requirement were closely related to her nominated occupation of Environmental Engineer, pursuant to clause 485.222 of Schedule 2 to the Regulations.

The Tribunal reasoned that the applicant had met both clause 485.221 and 485.222. It considered the applicant's completion of a Diploma and an Advanced Diploma in Leadership and Management in Australia, alongside her prior Bachelor of Environmental Engineering from Venezuela. The Tribunal accepted submissions that the skills acquired in the Australian leadership and management courses were transferable to the nominated occupation of Environmental Engineer, particularly in light of Engineers Australia's description of the broad responsibilities of professional engineers, which include integrating technical and non-technical considerations, managing risk, and addressing sustainability issues.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criteria under clauses 485.221 and 485.222.

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 Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the Australian study requirement in the 6 months immediately preceding the day the application was made (cl.485.221) and secondly that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements. When making the visa application the applicant nominated the occupation Environmental Engineer. She provided evidence that she completed a Diploma in Leadership and Management in the period April 2016 to March 2017 and an Advanced Diploma in Leadership and Management in the period April 2017 to April 2018, both at Strathfield College Australia. The applicant had already completed a Bachelor in Environmental Engineering in Venezuela in the period September 2005 to December 2010. The delegate’s migration agent provided a written submission addressing the various requirements for the grant of the Subclass 485 visa including the Australian study requirement. She asserted that the skill sets that underpin the Advanced Diploma and Diploma in Leadership and Management qualifications are directly transferable to the nominated occupation of Environmental Engineer in terms of subject matter and the level at which those skills were obtained. She stated that the courses are designed for individuals wishing to work in senior or strategic management across a range of engineering business and organisational settings. She explained that Engineers Australia classifies an environmental engineer under the grouping Professional Engineers, a role which includes “understanding the requirements of clients, wide-ranging stakeholders and of society as a whole; working to optimise social environmental and economic outcomes over the full lifetime of the engineering product or program; interacting effectively with other disciplines, professions and people and ensuring that the engineering contribution is properly integrated into the totality of the undertaking.” She noted that Engineers Australia provides that “professional engineers are responsible for bringing knowledge to bear from multiple sources to develop solutions to complex problems and issues for ensuring that technical and non-technical considerations are properly integrated and for managing risk as well is sustainability issues… (They) have a particular responsibility for understanding clearly how new developments relate to established practice and experience, and to other disciplines with which they interact. One hallmark of a professional is the capacity to break new ground in an informed, responsible and sustained fashion.”

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. 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 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·cl.485.222 of Schedule 2 to the Regulations.Denise ConnollyMember

Ratio Decidendi

Legal Principle Established

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