Suarez Vera (Migration) - [2022] AATA 1225

Suarez Vera (Migration) [2022] AATA 1225 (16 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anderson Joselyn Suarez Vera
REPRESENTATIVE:  Mr Jorge Gamba (MARN: 1805594)
CASE NUMBER:  1933335
HOME AFFAIRS REFERENCE(S):          BCC2019/4330476
MEMBER:Jade Murphy
DATE:16 February 2022
PLACE OF DECISION:  Melbourne
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 16 February 2022 at 4:40pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Industrial Engineer – applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application– qualification ‘closely related’ to the nominated occupation – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 485.221, 485.222

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 6 November 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 August 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 visa because the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualifications used to satisfy the Australian study requirement, namely a Diploma of Project Management and Advanced Diploma of Program Management are closely related to his nominated occupation of Industrial Engineer (ANZSCO 233511).
The applicant appeared before the Tribunal on 16 December 2021 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 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 six months immediately before the day the visa application was made (cl 485.221) and secondly, that each degree, diploma, or…

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 Suarez Vera (Migration)

Details

AGLC: Suarez Vera (Migration) [2022] AATA 1225
Case: [2022] AATA 1225
Decision Date: 16 February 2022

CaseChat Overview and Summary

This matter concerned 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 the visa, specifically clauses 485.221 and 485.222 of Schedule 2 to the Regulations. The dispute centred on whether the applicant met the requirements of these clauses, which relate to satisfying the Australian study requirement within six months prior to the visa application and having qualifications closely related to the nominated occupation.

The Tribunal was required to determine if the applicant had satisfied the Australian study requirement as defined by regulation 1.15F(1) of the Regulations. This involved assessing whether the applicant had completed one or more registered degrees, diplomas, or trade qualifications awarded by an Australian educational institution, undertaken while in Australia on a study-authorised visa, completed in a total of at least 16 calendar months, and resulting from at least two academic years of study, with all instruction conducted in English. The Tribunal also had to consider whether the qualifications relied upon were completed within the six months immediately preceding the visa application date and whether they were closely related to the applicant's nominated skilled occupation.

The Tribunal found that the applicant had completed a Diploma of Project Management and an Advanced Diploma of Program Management from the Universal Institute of Technology. These qualifications were registered courses completed at a CRICOS registered institution. The Tribunal was satisfied that both courses were completed within the six months immediately before the visa application date, with the Advanced Diploma being completed on 13 August 2019 and the application lodged on 30 August 2019. Consequently, the Tribunal concluded that the applicant met the requirements of both clause 485.221 and clause 485.222. The Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant had met these specific 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 six 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.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 one 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 two 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 registered under the Education Services for Overseas Students Act 2000. As evidenced by the applicant’s certificates of completion submitted to the Tribunal on review, the Tribunal is satisfied that the applicant has completed the following qualifications: Diploma of Project Management from the Universal Institute of Technology commenced 3 July 2017, completed 2 October 2018; and Advanced Diploma of Program Management from the Universal Institute of Technology commenced 6 August 2018, completed 13 August 2019. Clause 485.221 requires the qualifications to be relied on to satisfy the Australian study requirement be completed within six months immediately before the day the application is made. Together, both courses were completed within six months immediately before the day the application was made as the applicant’s Advanced Diploma of Program Management was completed on 13 August 2019 and the applicant applied for this visa on 30 August 2019. Both qualifications further satisfy the Australian study requirement as they are registered courses (course codes BSB51415 and BSB61218) completed at a CRICOS registered institution (CRICOS codes 02946M).

Decision

Reasons for decision

Based on the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and cl 485.222. 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.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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