Rezende Souza E Silva (Migration) - [2023] AATA 799

Rezende Souza E Silva (Migration) [2023] AATA 799 (4 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Renan Rezende Souza E Silva

REPRESENTATIVE:  Miss Bianca Chisari (MARN: 1573911)
CASE NUMBER:  1924228
HOME AFFAIRS REFERENCE(S):          BCC2019/3099123
MEMBER:Warren Stooke AM
DATE:4 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the 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 4 January 2023 at 1:31pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Mechanical Engineer – Australian study requirement – Advanced Diploma of Program Management – whether qualification ‘closely related’ to nominated occupation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Talha v Minister for Immigration and Border Protection [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 13 August 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 19 June 2019. 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 (Cth) (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 on the basis that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the subjects studied in Project Management courses were considered as skills not necessary to undertake a role as a Mechanical Engineer – ANZSCO Code: 233512.
The applicant appeared before the Tribunal on 10 November 2022 to give evidence and present arguments.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood the reason for the refusal of his visa application was because the agent was responsible for not advising the courses in Project Management were not closely related to the nominated occupation.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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…

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 Rezende Souza E Silva (Migration)

Details

AGLC: Rezende Souza E Silva (Migration) [2023] AATA 799
Case: [2023] AATA 799
Decision Date: 4 January 2023

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant sought to satisfy the primary criteria for this visa, specifically clauses 485.221 and 485.222 of Schedule 2 to the Regulations. The dispute centred on whether the applicant met these requirements, which necessitate having satisfied the 'Australian study requirement' in the six months prior to the visa application and that each qualification used to meet this requirement must be 'closely related' to the applicant's nominated skilled occupation. The decision was made by Warren Stooke AM.

The legal issues before the Tribunal were whether the applicant had satisfied the Australian study requirement and, crucially, whether the applicant's qualification, an Advanced Diploma of Program Management, was closely related to the nominated occupation of Mechanical Engineer. The applicant provided evidence of various qualifications, including a Bachelor of Engineering from Brazil, an Advanced Diploma of Program Management from an Australian college, and a skills assessment from Engineers Australia for the occupation of Mechanical Engineer. The Tribunal was required to assess the relationship between the Australian qualification and the nominated occupation in light of the ANZSCO descriptor for Mechanical Engineer.

The Tribunal reasoned that the applicant had met the requirements of clause 485.221 and clause 485.222. While the specific reasoning for this finding is not detailed in the provided text, it is evident that the Tribunal considered the applicant's Australian study and its relevance to the nominated occupation. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with the direction that the applicant had met the specified criteria. The Tribunal's final order was to remit the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the finding that the applicant 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 cl 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 before the day the visa 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. The applicant stated that he arrived in Australia on 27 September 2016 and was granted a Bridging Visa A on 19 June 2019 that became active on 28 June 2019 at the expiry of his Student (Temporary) Visa. The Bridging Visa A contained condition 8501 to maintain health insurance. The applicant provided evidence of an AFP Police check dated 31 May 2019 that stated – ‘no disclosable court outcomes’. The applicant provided evidence of the completion of a PTE English language test on 13 July 2018 with a score of 83. The applicant provided evidence of a successful skills assessment with Engineers Australia dated 18 February 2019 at the Professional Engineer Skill Level 1, which was based upon a Bachelor of Engineering from Pontificia Universidade Catolic de Minas Gerais, Brazil. The applicant provided evidence of health insurance with Bupa that commenced on 29 June 2019. The applicant provided evidence of the completion of the following courses of study at the Australian Pacific College (CRICOS Provider Code: 01331F):· Advanced Diploma of Program Management, Australian Pacific College (Certificate of completion dated 28/4/2019; academic transcript issued on 2/5/2019) · Diploma of Project Management, Australian Pacific College (Certificate of completion issued on 6/5/2018; academic transcript issued on 31/7/2018);· Certificate IV in Project Management Practice, Australian Pacific College (certificate of completion issued on 2/4/2017; academic transcript issued on 28/4/2017) The Advanced Diploma of Program Management, which was undertaken over a period of 52 weeks, included the following subjects in the course: The Diploma of Project Management, which was undertaken over a period of 52 weeks, included the following subjects in the course: The nominated occupation of Mechanical Engineer – ANZSCO Code: 233512 has the following descriptor:“UNIT GROUP 2335 INDUSTRIAL, MECHANICAL AND PRODUCTION ENGINEERSINDUSTRIAL, MECHANICAL AND PRODUCTION ENGINEERS design, organise and oversee the construction, operation and maintenance of mechanical and process plant and installations, establish programs for the coordination of manufacturing activities, and ensure usage of resources is cost effective.Indicative Skill Level:In Australia and New Zealand:Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).Registration or licensing may be required.Tasks Include:ostudying functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplicationoestablishing work measurement programs and analysing work samples to develop standards for labour utilisationoanalysing workforce utilisation, facility layout, operational data and production schedules and costs to determine optimum worker and equipment efficienciesodesigning mechanical equipment, machines, components, products for manufacture, and plant and systems for constructionodeveloping specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant and systemsoorganising and managing project labour and the delivery of materials, plant and equipmentoestablishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulationsoinspecting plant to ensure optimum performance is maintainedodirecting the maintenance of plant buildings and equipment, and coordinating the requirements for new designs, surveys and maintenance schedulesOccupations:233511 Industrial Engineer233512 Mechanical Engineer233513 Production or Plant Engineer233512 MECHANICAL ENGINEERPlans, designs, organises and oversees the assembly, erection, operation and maintenance of mechanical and process plant and installations. Registration or licensing may be required.Skill Level: 1Specialisations:Airconditioning EngineerHeating and Ventilation Engineer”

Decision

Reasons for decision

Given 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;Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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