Serrano Duran (Migration) - [2022] AATA 2965

Serrano Duran (Migration) [2022] AATA 2965 (31 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Johana De Los Angeles Serrano Duran
Mr Jose Vicente Chong Martinez
REPRESENTATIVE:  Mrs Heidi Maryelen Ochoa-Tuqiri (MARN: 0533317)
CASE NUMBER:  1914757
HOME AFFAIRS REFERENCE(S):          BCC2019/1027477
MEMBER:Ian Berry
DATE:31 August 2022
PLACE OF DECISION:  Brisbane
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

Statement made on 31 August 2022 at 2:52pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualification closely related to nominated occupation – qualification in program management and occupation of ICT business analyst – comparison of modules of qualification and ANZSCO description – whole of qualification and whole of occupation – not an exact correspondence, but more than complementary – diploma, advanced diploma and relevant experience – skills assessment – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.222
CASES
Chawdhury v MIAC (2011) 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 MIBP (2015) FCAFC 115
Tobon v MIBP [2014] FCCA 220
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 (DHA) on 28 May 2019 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 1 March 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 visas as the first named applicant (the applicant) did not satisfy cl 485.222 of Schedule 2 to the Regulations because the qualification of Advanced Diploma in Program Management is not closely related to the nominated occupation of ICT Business Analyst ANZSCO 261111.
The Tribunal exercised its discretion to hold the hearing by video. During the COVID-19 pandemic, special circumstances exist for the video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and…

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

AGLC: Serrano Duran (Migration) [2022] AATA 2965
Case: [2022] AATA 2965
Decision Date: 31 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered 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 Migration Regulations 1994, which relate to the Australian study requirement and the close relationship between the applicant's qualification and their nominated occupation.

The Tribunal was required to determine whether the applicant met the Australian study requirement, as defined by regulation 1.15F(1), and whether the qualifications relied upon were closely related to the applicant's nominated skilled occupation. The applicant presented a Diploma of Project Management and an Advanced Diploma in Program Management, completed within a 22-month period between February 2017 and December 2018. These qualifications were registered courses, delivered in English, undertaken in Australia while the applicant held a student visa, and aggregated 98 academic weeks of study, exceeding the minimum requirement of two academic years.

The Tribunal found that the applicant had satisfied the Australian study requirement under clause 485.221. Furthermore, it addressed an administrative error concerning a Certificate IV in Project Management Practice, confirming through correspondence from the educational institution that the applicant had indeed completed the BSB51415 Diploma of Project Management. The Tribunal concluded that the applicant also met the criteria under clause 485.222, finding the qualifications to be closely related to the nominated occupation. Consequently, the Tribunal remitted the applications for reconsideration with a direction that the first applicant met both specified criteria.

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’s qualifications The applicant’s qualifications are:a.Diploma of Project Management (Diploma)[1]; andb.Advanced Diploma in Program Management (Advanced Diploma).[1] A letter from Australian Pacific College dated 1 February 2022 made an error which was corrected. The error was to award a Certificate IV rather than a Diploma. See paragraph 34.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·were completed in a total of at least 16 calendar months; and·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·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 registered under the Education Services for Overseas Students Act 2000 (IMMI 09/040[2]).[2] IMMI 09/040 states in(b) 2 academic years is at least a total of 92 weeks, being the duration of a course or courses registered under section 9 Education Services for Overseas Students Act 2000; The applicant satisfied the Australian study requirement in the following way:·The Diploma commenced on 6 February 2017 and was completed on 17 December 2017. ·The Advanced Diploma commenced on 5 February 2018 and was completed on 16 December 2018. The Advanced Diploma totalled 49 academic weeks and the Diploma totalled 49 academic weeks, aggregating to 98 academic weeks.·The period between 6 February 2017 and 16 December 2018 represents a duration of over 22 months.·Both qualifications were a result of studying CRICOS registered courses.·The instruction for the courses leading to the qualifications were all conducted in English.·The applicant held a student Visa for the entire period of instruction.

Decision

Reasons for decision

It should be noted the Tribunal questioned as to the applicant’s course and qualification ‘Certificate IV in Project Management Practice’ where it appears in the applicant’s confirmation of enrolments. As a result, the applicant challenged the qualification by contacting the Australian Pacific College as to the Certificate IV should have been a Diploma qualification. By letter dated 1 February 2022, a copy of which was given to the Tribunal, the Australian Pacific College confirmed the following the following:‘Further to our letter of 16 December 2021, we have been asked to provide more detailed information related to the administrative error made by Australian Pacific College and to confirm that the above-mentioned student definitely studied and successfully completed BSB51415 Diploma of Project Management.The corrected error and subsequent issuance of the CoE for Diploma of Project Management can be seen in PRISMS from the screenshot below.This screenshot also shows in PRISMS the CoE (CA6C5826) and study period 06/02/2017 to 17/12/2017 for the Diploma of Project Management as “Finished”.The CoE for Certificate IV in Project Management Practice shows as “Cancelled”.’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.Ian BerryMember

Ratio Decidendi

Legal Principle Established

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