Saldarriaga Moreno (Migration) - [2023] AATA 246

Saldarriaga Moreno (Migration) [2023] AATA 246 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mauricio Saldarriaga Moreno
Mrs Juliana Zapata Zapata
CASE NUMBER:  2114913
HOME AFFAIRS REFERENCE(S):          BCC2018/4701311
MEMBER:Jade Murphy
DATE:27 January 2023
PLACE OF DECISION:  Melbourne
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

Statement made on 27 January 2023 at 1:01pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualification completed in 6 months before application made – final assessment completed before application made but completion letter issued after – unit completed when course provider has finished assessing student’s work – detailed and reliable oral and documentary evidence – qualification closely related to nominated occupation – issue determined by previously constituted tribunal – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), (2), Schedule 2, cls 485.221, 485.222(1)
CASE
Ali v MICMSMA [2021] FCA 1311
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 8 October 2021 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 25 October 2018. 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 visas because the first named applicant (the applicant) did not satisfy cl 485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualifications used to satisfy the Australian study requirement were completed in the last six months ending immediately before the day the application was made.
The applicants appeared before the Tribunal on 23 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
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…

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: [2023] AATA 246
Decision Date: 27 January 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Saldarriaga Moreno concerning 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. Clause 485.221 requires the applicant to have satisfied the 'Australian study requirement' within the six months immediately preceding the visa application, while clause 485.222 mandates that the qualifications used to meet this requirement must be closely related to the applicant's nominated skilled occupation, unless specific exceptions apply.

The central legal issue before the Tribunal was whether the applicant had met these two criteria. The applicant's eligibility hinged on the interpretation of when a qualification is considered 'completed' for the purposes of the Australian study requirement, particularly in relation to the visa application date. The applicant had provided evidence of completing an Advanced Diploma of Management, a Diploma of Project Management, and an Advanced Diploma of Leadership Management. The delegate's decision had been based on a completion letter for the Advanced Diploma of Leadership and Management, which was dated after the visa application, leading to a finding that the applicant had not met the six-month timeframe.

The Tribunal noted that the issue of whether the applicant met the criteria under clause 485.222, specifically the close relationship between qualifications and nominated occupation, had already been determined by a previously constituted Tribunal on 27 May 2021. By oral decision on that date, the previous Tribunal had remitted the matter with a direction that the applicant met this criterion. Consequently, the current Tribunal remitted the applications for reconsideration, with the direction that the first applicant meets the criteria set out in clause 485.221 of Schedule 2 to the Regulations.

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, unless limited circumstances apply, 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(1)). The issue in the present case is whether the applicant meets those requirements.Does the applicant meet the Australian study requirement? Under reg 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 regs 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 (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course or courses registered under the Education Services for Overseas Students Act 2000 (Cth) (IMMI 09/040). As set out in the primary decision record, and as evidenced by the applicant’s documents contained on the Departmental file, the applicant completed the following qualifications and claimed they were undertaken within the following dates:·Advanced Diploma of Management started 7 April 2015 to 20 March 2016;·Diploma of Project Management started 6 June 2016 to 10 September 2017; and·Advanced Diploma of Leadership Management started 16 October 2017 to 21 October 2018. As stated, the delegate did not consider that these qualifications were completed by the applicant within six months of applying for the visa application on 25 October 2018. The delegate relied on the applicant’s Completion Letter issued by the Universal Institute of Technology on 12 November 2018 for the Advanced Diploma of Leadership and Management, which stated he completed the qualification on 11 November 2018. As this post-dated the application date, the delegate was not satisfied that the applicant had completed the qualifications within the six months prior to lodging the visa application.

Decision

Reasons for decision

The Tribunal did not hear submissions or arguments regarding this issue. The Tribunal notes that this issue has already been determined by a previously constituted Tribunal on 27 May 2021. By oral decision of the same date, the previously constituted Tribunal remitted the matter back to the Department with the direction that the applicant meets the criteria set out in cl.485.222 and that the qualifications used to satisfy the Australian study requirement are closely related to the nominated occupation.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 RegulationsJade MurphyMember

Ratio Decidendi

Legal Principle Established

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