Tiradentes Leonel Filho (Migration) - [2023] AATA 804

Tiradentes Leonel Filho (Migration) [2023] AATA 804 (3 January 2023)
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ricardo Tiradentes Leonel Filho
CASE NUMBER:  1929795
HOME AFFAIRS REFERENCE(S):          BCC2019/3885300
MEMBER:Warren Stooke AM
DATE:3 January 2023
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
·cl 485.222 of Schedule 2 to the Regulations

Statement made on 3 January 2023 at 9:19am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Engineering Technologist – Australian study requirement – Diploma of Leadership and Management – whether qualification ‘closely related’ to nominated occupation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
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 2 October 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 6 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 on the basis that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the Certificate IV and Diploma of Leadership and Management were not closely related to the occupation of Engineering Technologist – ANZSCO Code: 233914.
The applicant appeared before the Tribunal on 13 December 2022 to give evidence and present arguments.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that the decision was because the courses in the Australian Certificate IV of Leadership and Management; the Diploma of Project Management and Diploma of Leadership and Management were not closely related to the occupation (Engineering Technologist – ANZSCO Code: 233914).
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…

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 Tiradentes Leonel Filho (Migration)

Details

AGLC: Tiradentes Leonel Filho (Migration) [2023] AATA 804
Case: [2023] AATA 804
Decision Date: 3 January 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Graduate Work stream, to Mr Tiradentes Leonel Filho. The applicant sought to satisfy the primary criteria for the visa, which included meeting the Australian study requirement and ensuring that any qualifications used to satisfy this requirement were closely related to his nominated skilled occupation.

The core legal issues before the Tribunal were whether the applicant met the requirements of cl 485.221 and cl 485.222 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had satisfied the Australian study requirement in the six months prior to his visa application, and crucially, whether each degree, diploma, or trade qualification he relied upon was closely related to his nominated occupation of Engineering Technologist (ANZSCO Code: 233914). The delegate's refusal was based on the finding that the applicant's Certificate IV and Diploma of Leadership and Management were not closely related to this nominated occupation.

The Tribunal reasoned that the matter should be remitted for reconsideration. While the applicant had provided evidence of completing relevant engineering qualifications in Brazil and undertaking studies in Australia, including a Diploma of Project Management and a Diploma of Leadership and Management, the delegate had concluded these latter qualifications were not closely related to the nominated occupation. The Tribunal's decision to remit indicates that it found grounds to reconsider the delegate's assessment of the relationship between the applicant's Australian qualifications and his nominated occupation, suggesting a potential error in the initial determination of cl 485.222.

Consequently, the Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration. The Tribunal directed that the first named applicant, Mr Tiradentes Leonel Filho, be considered to meet both cl 485.221 (the Australian study requirement) and cl 485.222 (the close relationship of qualifications to nominated occupation) 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, 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 is a 35 year old from Brazil, who was granted a Bridging Visa A on 6 August 2019, which became effective when his Student (Temporary) Visa ended on 14 August 2019. The visa has condition 8501 that requires the applicant to maintain health insurance. The applicant provided evidence that he completed a Bachelor of Environmental Engineering (2008-2013) and a Master of Infrastructure of Sanitation (2015-2016) at PUC in Campinas in Brazil. The applicant provided evidence of the completion of the following courses of study in Australia:a.Diploma of Project Management, Envirotech Institution, Burleigh Heads (CRICOS Code: 03586M) from 7 April 2017 to 20 October 2017 with a certificate of completion issued on 7 November 2017; b.Certificate IV in Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 103962D) from 27 November 2017 to 15 June 2018 with a certificate of completion issued on 29 June 2018;c.Diploma of Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 104204A) from 13 August 2018 to 14 June 2019 with a Certificate of completion issued on 20 June 2019. The applicant provided evidence of undertaking a PTE English language test on 11 December 2018 with a score of 75. The applicant provided evidence of maintaining health insurance with Nib that commenced on 15 August 2018. The applicant provided evidence from Engineers Australia of a successful competency test on 9 October 2018 of having met the requirements of an Engineering Technologist - ANZSCO Code: 233914. The applicant provided evidence of an invitation from the Department of Home Affairs dated 30 June 2020 to apply for a 491 (SNR) points visa. The applicant stated that he had attended interviews, however, progression was affected by his current visa situation. The applicant stated at hearing that he is currently working in manufacturing of fast charges for electrical vehicles based on a PCV, which is related to his applied engineering job of Engineering Technologist. The applicant stated that he is paid $30.00 per hour. The following ANZSCO descriptor applies to the nominated occupation of Engineering Technologist – ANZCO Code: 233914:UNIT GROUP 2339 OTHER ENGINEERING PROFESSIONALSThis unit group covers Engineering Professionals not elsewhere classified.It includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects (Aus) / Marine Designers (NZ).Indicative Skill Level:In Australia and New Zealand:Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).Registration or licensing may be required.Occupations:233911 Aeronautical Engineer233912 Agricultural Engineer233913 Biomedical Engineer233914 Engineering Technologist233915 Environmental Engineer233916 Naval Architect (Aus) / Marine Designer (NZ)233999 Engineering Professionals nec233914 ENGINEERING TECHNOLOGISTAnalyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects. Registration or licensing may be required.Skill Level: 1Specialisations:Aeronautical Engineering TechnologistAgricultural Engineering TechnologistBiomedical Engineering TechnologistChemical Engineering TechnologistIndustrial Engineering TechnologistMining Engineering Technologist

Decision

Reasons for 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;Warren Stooke AMMemberSTATEMENT OF DECISION AND REASONSAPPLICATION FOR REVIEW This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 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 6 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 on the basis that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the Certificate IV and Diploma of Leadership and Management were not closely related to the occupation of Engineering Technologist – ANZSCO Code: 233914. The applicant appeared before the Tribunal on 13 December 2022 to give evidence and present arguments. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that the decision was because the courses in the Australian Certificate IV of Leadership and Management; the Diploma of Project Management and Diploma of Leadership and Management were not closely related to the occupation (Engineering Technologist – ANZSCO Code: 233914). 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 is a 35 year old from Brazil, who was granted a Bridging Visa A on 6 August 2019, which became effective when his Student (Temporary) Visa ended on 14 August 2019. The visa has condition 8501 that requires the applicant to maintain health insurance.

Ratio Decidendi

Legal Principle Established

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