Valderrama Rojas (Migration) - [2024] AATA 1201

Valderrama Rojas (Migration) [2024] AATA 1201 (15 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr David Felipe Valderrama Rojas
Ms Laura Martinez Casas
CASE NUMBER:  2120246
HOME AFFAIRS REFERENCE(S):          BCC2021/1517358
MEMBER:K. Chapman
DATE:15 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 15 May 2024 at 4:08pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – courses completed within 6 months before visa application – date of completion of the academic requirements – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15, 2.26
CASES
Ali v MICMSMA [2021] FCA 1311
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 Home Affairs, on 17 December 2021, to refuse to grant the applicants Skilled (Provisional) (Class VC) visas, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The first named applicant applied for the visa on 3 August 2021, including the second named applicant in the visa application. Visa Class VC contains Subclass 485 (Temporary Graduate). 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’), including criteria in different streams. In this matter, the applicant is seeking to meet the criteria in the Post-Study Work stream, which includes cl 485.231.
The delegate refused to grant the visas because the first named applicant (hereafter ‘the applicant’) did not satisfy cl 485.231 of Schedule 2 to the Regulations, due to a lack of satisfaction that his qualification of the Bachelor of Commerce was completed in the 6 months ending immediately before the day the visa application was made. Therefore, the delegate was not satisfied the applicant met the ‘Australian study requirement’ in the required period prior to the visa application being lodged. On 31 December 2021, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application.
The applicant appeared by video conference before the Tribunal on 18 April 2024 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by video means. The Tribunal records that it finds the applicant to have provided honest evidence at the review hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.231 requires the applicant to hold a qualification, or qualifications, of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister and to have satisfied the ‘Australian study requirement’ in the 6 months…

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: [2024] AATA 1201
Decision Date: 15 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Ms. Valderrama Rojas for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 (Temporary Graduate) – Post-Study Work stream. The dispute centred on whether the applicant met the requirements for this visa, particularly the Australian study requirement.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the criteria outlined in clause 485.231 of the Migration Regulations. This involved assessing whether the applicant held a specified qualification awarded by a specified educational institution, and crucially, whether she had satisfied the Australian study requirement within the six months immediately preceding her visa application. The Tribunal also considered an alternative pathway for satisfying the Australian study requirement if the applicant had been unable to apply within the six-month period due to being outside Australia between 1 February 2020 and 19 September 2020.

The Tribunal reasoned that clause 485.231 was applicable to the applicant as there was no evidence she had previously held a Subclass 485 visa in the relevant streams. It was established that the applicant held a Bachelor of Commerce, a qualification specified by the Minister, and that this qualification was awarded by Griffith University, also a specified educational institution. The Tribunal found no suggestion that the applicant was outside Australia during the relevant period, thus requiring her to meet the Australian study requirement within the six months prior to her visa application. The definition of the Australian study requirement under regulation 1.15F(1) was applied, which mandates the completion of registered courses totalling at least 16 calendar months of study, representing at least two academic years, with all instruction in English, undertaken in Australia while holding a valid study visa.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa. The Tribunal also noted that the second applicant, who applied as a member of the family unit, also had her review application dismissed.

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 Clause 485.231 requires the applicant to hold a qualification, or qualifications, of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)). Alternatively, the ‘Australian study requirement’ may be satisfied in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). Clause 485.231 does not apply to an applicant who held a prior Subclass 485 visa in certain circumstances: cl 485.231(1A). The issue in the present matter is whether cl 485.231 applies to the applicant and, if so, whether the applicant meets those requirements.Does cl 485.231 apply to the applicant? There is no evidence, nor claim, that the applicant held a Subclass 485 visa in the Post-Study Work stream, or in the Replacement stream, when the visa application that is under review was made. Accordingly, as is relevant to the present review, cl 485.231 is applicable to the applicant. Therefore, to be granted the Subclass 485 visa, the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. Does the applicant hold a specified qualification? Subclause 485.231(1) requires the applicant to hold a qualification, or qualifications, of a kind specified by the Minister. In this matter, the applicant holds a Bachelor of Commerce. This is a qualification specified in the relevant Instrument. Therefore, the applicant satisfies cl 485.231(1). Was the applicant’s qualification conferred or awarded by a specified educational institution? Subclause 485.231(2) requires the applicant’s qualification to be conferred, or awarded, by an educational institution specified by the Minister. In this matter, the applicant’s qualification was conferred, or awarded, by Griffith University. This is an educational institution specified in the relevant Instrument. Therefore, the applicant satisfies cl 485.231(2). Does the applicant meet the Australian study requirement? There is no suggestion that the applicant was outside of Australia at a relevant time. Therefore, cl 485.231(3) requires the applicant to meet the ‘Australian study requirement’ in the 6 months immediately before the day the Subclass 485 visa application was made. Pursuant to reg 1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that they have 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; ·that were completed in a total of at least 16 calendar months;·that were completed as a result of a total of at least 2 academic years study;·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.

Decision

Reasons for decision

As the second named applicant applied for the Subclass 485 visa on the basis of being a Member of the Family Unit of the applicant, her review application is also unsuccessful. DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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