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

1. 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).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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.

8. ‘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).

9. 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.

10. 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.

11. On review, the applicant provided the Tribunal with comprehensive written submissions arguing that the delegate should have considered that the applicant completed his final assessment on 21 October 2018 (and final feedback and comments were provided to him on that date). The applicant also submitted that there was no evidence available to the delegate that any marking, assessment, or grading occurred after this date. As a result, the applicant asserted that on 21 October 2018 he met the academic requirements for the course and so satisfied the requirements for the visa from that date, despite the Completion Letter stating the course was completed on 11 November 2018.

12. In support of this approach, the applicant relied on the decision of Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311 and stated:

    “The court in Ali affirmed and applied the test laid out in Venkatesan v Minister for Immigration [2008] FMCA 409; (2008) 216 FLR 356. That test requires that 2 events must occur before a course can be considered “completed” for the purposes of the regulations. Firstly, the student must have completed all their academic requirements. Secondly, the education provider must have made its decision that the student has met all the academic requirements.

    It is the second event that is most relevant to this application. In particular, the courts have ruled that a unit is to be regarded as completed for the purposes of the regulation as soon as the education provider has finished assessing and evaluating the student’s work.”

13. In addition, the applicant provided an assessment report issued by the Universal Institute of Technology, dated 21 October 2018 which the applicant submits is his final assessment. It was issued for a unit titled “BSBWHS605 – Develop, implement and maintain WHS Management systems.”

14. At hearing, the Tribunal told the applicant that it notes and accepts his submissions regarding the case of Ali and its applicability in the circumstances, however it remained concerned that the assessment report dated 21 October 2018 does not state that it is the final assessment to complete the qualification. The Tribunal further noted that a document titled, ‘Term Planner’, also provided by the applicant on review, lists this subject “BSBWHS605 – Develop, implement and maintain WHS Management systems” as taking place in October 2018, but it then lists a further two units to be undertaken in November and December of 2018. The Tribunal asked the applicant to comment on it’s concerns in this regard.

15. The applicant told the Tribunal that he began his qualification in October 2017, as evidenced by the enrolment and commencement documentation provide by the applicant on review. The applicant submitted that the education provider took an intake of students into the course monthly, and each intake commenced their course with whatever unit was being taught that month as listed on the ‘Term Planner.’ The applicant explained that therefore he began his course by undertaking the two units of study listed to be undertaken in November and December in 2017 and worked his way through the units consecutively each month as listed on the ‘Term Planner’. As a result, his final unit was completed in October 2018, as the November and December units had been completed first, the year before.

16. The Tribunal asked the applicant why he had not just waited to lodge this visa application until after he had received a formal Letter of Completion from his education provider. The applicant responded that he had asked his education provider when he could expect to receive a Letter of Completion and he was told it would take a few days. The applicant waited a few days until 25 October 2018, but when he had not received the letter decided to apply in any event, believing that he had completed his course and was satisfied that his education provider had confirmed that he fulfilled all the academic requirements for the course.

17. The Tribunal accepts the applicant’s submissions as expressed at hearing and as contained in written submissions. The Tribunal finds the oral testimony of the applicant to be candid, significantly detailed and supported by the documentary evidence in every way. As a result, the Tribunal finds it reliable and places favourable weight on it to find that the applicant’s final unit of study was “BSBWHS605 – Develop, implement and maintain WHS Management systems”. The Tribunal further accepts the applicant’s assessment report for this subject which was marked as successfully complete on 21 October 2018. The Tribunal considers it was reasonable for the applicant to have believed that he had fulfilled the academic requirements for the grant of this qualification on 21 October 2018 and that therefore he could lodge his visa application from that date. This is particularly in circumstances where he received that advice from his education provider and was merely waiting on a final confirmation letter.

18. The Tribunal notes that the Departmental file contains a letter issued from the Universal Institute of Technology, dated 26 May 2021, obtained by the applicant after he received notification of the delegate’s refusal decision. The education provider expressly confirms the applicant’s submissions that he successfully submitted his last unit assessment on 21 October 2018. The letter also confirms that the institution’s administrative processes usually take around two weeks, which is why the Letter of Completion previously issued states his completion date as 11 November 2018, given that is when the institute finalised their administrative records. The Tribunal accepts the letter issued by the applicant’s education provider and places significant favourable weight on it. The Tribunal finds that it ameliorates the concern raised by the delegate in their primary decision that the applicant did not complete his study until 11 November 2018. The Tribunal finds that this letter clearly confirms that the education provider considered he had met all academic requirements of his course as of 21 October 2018. Applying the reasoning in Ali, the Tribunal considers that he therefore had completed his course within the six months prior to lodging the visa application.

19. The qualifications further satisfy the Australian study requirement as they are registered courses, completed at a CRICOS registered institution (CRICOS code 02946M).

20. The qualifications were completed in a total of at least 16 calendar months and as the result of at least two academic years of study.

21. The completion certificates issued from the education providers further confirm that each qualification was conducted in English.

22. In addition, Departmental checks confirm the applicant held the relevant student visa authorising study at the relevant times.

23. The Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application. Therefore, the applicant meets cl 485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

24. In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation, unless the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations.

25. 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

26. 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

    Jade Murphy
    Member