Salivio (Migration) - [2017] AATA 746

Salivio (Migration) [2017] AATA 746 (9 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Nheil Janel Salivio
CASE NUMBER:  1613122
DIBP REFERENCE(S):  BCC2016/2159958
MEMBER:Catherine Carney-Orsborn
DATE:9 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 09 May 2017 at 4:13pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Nurse – Course not completed within 6 months preceding visa application date

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.221, cl 485.222
CASES
Sapkota v MIAC [2012] FCA 981
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 Immigration on 9 August 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 June 2016. 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 (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 because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because they did not satisfy the Australian study requirement as the Bachelor of nursing qualification was not completed in the period of 6 months ending immediately before the day the application was made.
The applicant appeared before the Tribunal on 12 April 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 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 preceding 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.
Does the applicant meet the Australian study requirement?
Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian…

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: [2017] AATA 746
Decision Date: 9 May 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant's eligibility for this visa depended on meeting specific criteria related to their Australian study experience.

The primary legal issues before the Tribunal were whether the applicant satisfied the 'Australian study requirement' as defined by the Migration Regulations, and whether the qualifications relied upon were closely related to their nominated skilled occupation. Specifically, the Tribunal had to determine if the applicant had completed the necessary study within the six months immediately preceding their visa application date, and if the courses undertaken met the regulatory definitions of registered courses, duration, and instruction in English.

The Tribunal found that while the applicant had provided evidence of a Bachelor of Nursing qualification from the University of Technology Sydney, a CRICOS registered course, the official results release date for this qualification was 14 December 2015. As the visa application was lodged on 24 June 2016, this completion date fell outside the six-month period required by clause 485.221 of Schedule 2 to the Regulations. The Tribunal also noted that a Certificate III in Health Services Assistance was not a CRICOS registered course and therefore could not satisfy the study requirement. The applicant's submission that a completion letter dated 8 January 2016 indicated they had satisfied the requirements was not sufficient to overcome the official results release date.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 485 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.

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 decision under review should be affirmed.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 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 preceding 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.Does the applicant meet the Australian study requirement? Under r.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 rr.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 (r.1.15F(2)). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (IMMI 09/040). The applicant lodged her application for a Temporary Graduate subclass 485 visa on 24 June 2016. The applicant supplied an academic transcript for a Bachelor of Nursing from the University of Technology Sydney as well as an award certificate and academic transcript for a Certificate III in Health Services Assistance from Nurse Training Australia. A letter of completion for the Bachelor of Nursing was provided which listed the 14 December 2015 as the official results release date. The Certificate III in Health Services Assistance is not a CRICOS course and cannot satisfy the study requirement. The Bachelor of Nursing qualification is a CRICOS registered course however based on the completion date provided by the University of Technology was not completed within the period of six months ending immediately before the day the application was lodged. The applicant in submissions stated that the completion letter is dated 8 January 2016 and this is the date she received information she had satisfied the requirements. The applicant provided a copy of this letter to the Tribunal.

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.Catherine Carney-OrsbornMember

Ratio Decidendi

Legal Principle Established

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