Ruge Penagos (Migration) - [2020] AATA 4934

Ruge Penagos (Migration) [2020] AATA 4934 (28 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Juan David Ruge Penagos
CASE NUMBER:  1905347
HOME AFFAIRS REFERENCE(S):          BCC2018/4973591
MEMBER:Susan Trotter
DATE:28 October 2020
PLACE OF DECISION:  Brisbane
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; and
·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 28 October 2020 at 7.10am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Electronics Engineer – Australian study requirement – Advanced Diploma of Program Management – qualification ‘closely related’ to nominated occupation – subjects studied – reference to Transcripts of Competencies Achieved – directly referable to the tasks of Engineering Professionals listed in ANZSCO – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC; Schedule 2, cls 485.221, 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
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 20 February 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a now 31-year-old citizen of Colombia. He first arrived in Australia in October 2015 as the holder of a student 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 9 November 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 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 delegate was not satisfied that the Diploma of Project Management and Advanced Diploma of Program Management qualifications completed by the applicant are closely related to the applicant’s nominated skilled occupation of Electronics Engineer (ANZSCO Code 233411) as required.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 March 2019 and provided the Tribunal with a copy of the delegate’s decision.
The applicant appeared before the Tribunal on 11 October 2020 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 remitted for reconsideration.
ISSUES
The applicant is seeking to satisfy the primary criteria for a Subclass 485…

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 Ruge Penagos (Migration)

Details

AGLC: Ruge Penagos (Migration) [2020] AATA 4934
Case: [2020] AATA 4934
Decision Date: 28 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by Ruge Penagos against a decision relating to a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant nominated Electronics Engineer as their skilled occupation and relied on an Advanced Diploma of Program Management as fulfilling the Australian study requirement. The core dispute revolved around whether the qualification was "closely related" to the nominated occupation and whether the applicant met the Australian study requirement within the specified timeframe.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant met the Australian study requirement in the six months immediately preceding the visa application. Secondly, whether each degree, diploma, or trade qualification relied upon by the applicant to satisfy the Australian study requirement was closely related to their nominated skilled occupation.

The Tribunal found that the applicant's Diploma of Project Management and Advanced Diploma of Program Management were recognised diplomas and registered courses, meeting the duration and English instruction requirements. It was satisfied that the applicant held appropriate visas authorising study during the relevant period. Consequently, the Tribunal found that the applicant met the Australian study requirement. However, the decision text indicates that the Tribunal did not fully determine the second issue regarding the closeness of the qualification to the nominated occupation, as it focused on the Australian study requirement.

The Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets criteria cl.485.221 and cl.485.222 of Schedule 2 to the Regulations. This implies that while the Australian study requirement was met, further assessment was needed on other criteria, including the relationship between the qualification and the nominated occupation.

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 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 (unedited):Diploma of Project Management Australian Pacific College 10/10/16 to 17/09/17Advanced Diploma of Program Management Australian Pacific College 16/10/17 to 23/09/18 Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application? 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 of Project Management and Advanced Diploma of Program Management are each diplomas as defined by r.2.26AC(6) and can be taken into account. Having regard to all evidence and material before it, including the Australian Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and Provider Registration and International Student Management System records, the Tribunal finds that the Diploma of Project Management and Advanced Diploma of Program 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. Based on the evidence before the Tribunal, these courses were studied by the applicant for a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met. CRICOS records show that the academic duration of the Diploma of Project Management was 49 weeks and the academic duration of the Advanced Diploma of Program Management was 49 weeks. These courses together were therefore of an academic duration of 98 weeks in total (that is, at least 92 weeks or two academic years). Further, the Tribunal is satisfied on the evidence before it that all instruction was in English for the courses. The Tribunal is therefore satisfied and finds that the requirements of rr.1.15F(1)(c) and r.1.15F(1)(d) are met in relation to these two courses together. Based on records from the Department, the Tribunal is satisfied that the applicant held various student visas and bridging visas, including between October 2016 and September 2018 authorising study. The Tribunal therefore finds that r.1.15F(1)(e) is met. As paragraphs (a) to (e) of r.1.15F are met, the Tribunal finds that the applicant meets the Australian study requirement. In considering whether that requirement was met in the six months immediately preceding the date of the visa application, the Tribunal notes that the Department’s policy guidelines contained in its Procedures Advice Manual (PAM3) states as follows in relation to the Australian study requirement under the Graduate Work stream:When must the study have been undertaken…· if the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the VC-485 application was made.

Decision

Reasons for decision

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 criteria for a Subclass 485 visa:·cl.485.221 of Schedule 2 to the Regulations; and·cl.485.222 of Schedule 2 to the Regulations.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

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