Ramos (Migration) - [2018] AATA 3546

Ramos (Migration) [2018] AATA 3546 (24 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Larry Ace Mechilina Ramos
CASE NUMBER:  1716628
DIBP REFERENCE(S):  BCC2017/2188919
MEMBER:Susan Trotter
DATE:24 July 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 24 July 2018 at 4:35pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement in six months – Courses registered – Length of studies – Academic duration of courses – Course closely related to nominated skill occupation – Recent course of generalised focus – No direct overlap of course and occupation – One course relates to occupation – Course not completed before application – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F,2.26AC, Schedule 2 cls 485.221, 485.222
CASES
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
Constantino v MIBP [2013] FCA 1301
Chawdhury v MIAC [2010] FMCA 275
Kabir v MIAC [2010] FMCA 577
Shafiuzzaman v MIAC [2011] FMCA 874
Tobon v Minister for Immigration & Anor [2014] FCCA 2208
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1]on 24 July 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
[1] Now the Minster for Home Affairs.
The applicant is a 29 year old citizen of the Philippines. He first arrived in Australia in June 2014 as the holder of a Subclass 572 (Vocational and Educational Training Sector) visa. He has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 21 June 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 because the delegate was not satisfied that the Advanced Diploma of Leadership and Management course completed by the applicant is closely related to the applicant’s nominated skilled occupation of “Registered Nurse nec” as required.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 31 July 2017.
The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES
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 cl.485.222 of Schedule 2 to the Regulations.
Clause 485.221 requires that the applicant…

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 Ramos (Migration)

Details

AGLC: Ramos (Migration) [2018] AATA 3546
Case: [2018] AATA 3546
Decision Date: 24 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by an applicant concerning a Skilled (Provisional) (Class VC) visa, Subclass 485. The applicant sought to have a decision not to grant the visa reviewed. The core of the dispute revolved around whether the applicant met the Australian study requirement and whether their completed courses were closely related to their nominated skilled occupation.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant had satisfied the Australian study requirement within the six months immediately preceding their visa application. Secondly, the Tribunal had to ascertain if each degree, diploma, or trade qualification relied upon by the applicant to meet the Australian study requirement was closely related to their nominated skilled occupation, which was identified as "Registered Nurse nec" (ANZSCO 254499).

In its reasoning, the Tribunal first assessed the applicant's listed studies. It found that the Diploma in Nursing and the Advanced Diploma in Leadership and Management were valid diplomas that could be considered for the Australian study requirement, and that these courses were registered. However, the Graduate Diploma – Initial Registration for Overseas Nurses was determined to be a non-award, non-AQF program and therefore not a degree, diploma, or trade qualification as defined by the regulations. The Tribunal also noted that the applicant's nominated occupation, Registered Nurse nec, shared identical tasks with the Registered Nurse (Medical) occupation in ANZSCO. Ultimately, based on these findings, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of 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

It follows that the issues to be determined by the Tribunal are:(a) Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?(b) Is each such degree, diploma or trade qualification relied upon by the applicant to satisfy the Australian study requirement closely related to the applicant’s nominated skilled occupation?CONSIDERATION OF CLAIMS AND EVIDENCE The applicant listed the following Australian study in his visa application:Diploma in Nursing (Enrolled/ Division 2 Nursing) TAFE Queensland Brisbane 15/06/14 to 25/11/15Advanced Diploma in Leadership and Management Queensland International Institute 29/02/16 to 01/02/17Graduate Diploma – Initial Education Training and EmploymentRegistration for Overseas Nurses Australia 01/03/17 to 23/05/17 The applicant provided detailed written submissions, and various documentation, to the Tribunal including as follows:(a) Letter/reference form Chanchal Kurup.(b) Letter/reference from Geeta Wagle.(c) Record of Results – Advanced Diploma of Leadership and Management.(d) Statement – Explanation of how Advanced Diploma of Leadership and Management units are closely related to the occupation of Registered Nurse ANZSCO 254418.[2]Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?[2] The Tribunal observes that the applicant has nominated “Registered Nurse nec” as the nominated occupation in his visa application. That description correlates to the occupation 254499 Registered Nurses nec in the Unit Group 2544 Registered Nurses in ANZSCO. The code 254418 correlates to the occupation of Registered Nurse (Medical) in ANZSCO. Notably, the tasks listed for both occupations in ANZSCO are identical, being the tasks listed for the Unit Group 2544 Registered Nurses. The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met. The Tribunal is satisfied and finds that the Diploma in Nursing and Advanced Diploma in Leadership and Management courses are diplomas as defined by r.2.26AC(6) and can be taken into account. However the Graduate Diploma – Initial Registration for Overseas Nurses course is a non-award non-AQF program and is neither a degree, diploma or trade qualification as defined in r.2.26AC(6). Having regard to all evidence and material before it, including Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and Provider Registration and International Student Management System (PRISMS) records, the Tribunal finds that the Diploma in Nursing and Advanced Diploma in Leadership and Management courses are registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.

Decision

Reasons for decision

On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

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