Vasquez Fernandez (Migration)

[2021] AATA 3132

Vasquez Fernandez (Migration) [2021] AATA 3132 (23 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Claudia Andrea Vasquez Fernandez
Mr Oscar Patricio Cardenas Navarro
Master Alonso Santiago Cardenas Vasquez
Miss Florencia Rafaela Cardenas Vasquez

CASE NUMBER:  1835068

HOME AFFAIRS REFERENCE(S):          BCC2017/4719360

MEMBER:K. Chapman

DATE:23 July 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

·cl.190.217 of Schedule 2 to the Regulations; and

·the second, third and fourth named applicants each satisfy cl.190.313 of Schedule 2 to the Regulations.

Statement made on 23 July 2021 at 5:34pm

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – husband of the applicant receives financial support provided by the Chilean Government – applicant satisfies Special Return Criterion 5010 (SRC 5010) –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 94
Migration Regulations 1994, Schedule 2, cls 190.213, 190.217

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 2018 to refuse to grant the applicants Skilled Nominated (Permanent) (Class SN) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’). This is a ‘points based’ visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant, Ms Claudia Andrea Vasquez Fernandez (hereafter ‘the applicant’), was invited to apply for the visa on 23 November 2017. She applied for the visa on 11 December 2017, including the second, third and fourth named applicants in the visa application. The applicants are Chilean nationals. The criteria for the grant of a Subclass 190 visa are set out in Part 190 - Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

3. The delegate refused to grant the visas because, in their view, the applicant did not satisfy Special Return Criterion 5010 (SRC 5010) for the purposes of cl.190.217. As is relevant to the present matter, SRC 5010 provides that in certain circumstances where a person holds, or has held, a Student visa where they are provided financial support by the Government of a foreign country, they must satisfy additional requirements for the grant of a further Australian visa. Of note, each Member of the Family Unit of the applicant who has applied for the Subclass 190 visa must also satisfy SRC 5010.

4. Typically, where an applicant completes a course of study of at least 12 months duration, SRC 5010 is satisfied by them spending at least two years outside of Australia since the completion of their study. SRC 5010 may also be satisfied where the applicant has the support of the Government of the foreign country, that provided the study funding, for the grant of the Australian visa. Certain compassionate or compelling circumstances may also justify the waiving of the criterion.

5. Both the applicant and her husband (the second named applicant) undertook postgraduate studies in Australia with financial support from the Chilean Government. It is not in dispute that neither have departed Australia since completing their studies. At the time of this decision, the applicants hold Subclass 500 visas granted on the basis of the second named applicant’s PhD studies at the University of Queensland.  

6. On 29 November 2018, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with her application for review. On 19 July 2021, the Tribunal invited the applicant to provide further information in support of her application for review. On 20 and 22 July 2021, the applicant provided various pieces of documentary evidence to the Tribunal. Of particular note, a letter from the Chilean National Agency for Research and Development (Department for Science, Technology, Knowledge & Innovation) dated April 2020, supporting the grant of Australian visas, was submitted to the Tribunal.

7. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant, and each member of her family unit, satisfy Special Return Criterion 5010 (SRC 5010) for the purposes of cl.197.217. That clause provides:

   (1) The applicant satisfies special return criteria 5001, 5002 and 5010.

   (2) Each member of the family unit of the applicant who is an applicant for a Subclass 190 visa satisfies special return criteria 5001, 5002 and 5010.

10. Special Return Criterion 5010 (SRC 5010), relevantly, provides:

    (1)  If:

    (a)  the applicant is the holder of a Foreign Affairs Student visa; or

    (b)  the applicant is the holder of a student visa granted to the applicant who is provided financial support by the government of a foreign country;

    the applicant meets the requirements of subclause (3), (4) or (5).

    (2)  If:

    (a)  the applicant is not the holder of a Foreign Affairs Student visa and has in the past held a Foreign Affairs Student visa; or

    (b)  both:

    (i)  paragraph (a) does not apply to the applicant, and the applicant is not the holder of a substantive visa; and

    (ii)  the last substantive visa held by the applicant was a student visa granted to the applicant who was provided financial support by the government of a foreign country;

    the applicant meets the requirements of subclause (3), (4) or (5).

    …

    (5)  The applicant meets the requirements of this subclause if:

    (a)  the applicant has the support of the Foreign Minister or the government of the foreign country that provided financial support to the applicant, as the case requires, for the grant of the visa; or

    (b)  the Minister is satisfied that, in the particular case, waiving the requirement of paragraph (a) is justified by:

    (i)  compelling circumstances that affect the interests of Australia; or

    (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

11. It is not in dispute that both the applicant and her husband (the second named applicant) received scholarships from the Chilean Government, through the National Agency for Research and Development (Department for Science, Technology, Knowledge & Innovation), to complete respective PhD studies at the University of Queensland. The applicant completed her PhD studies between 2010 and 2016. She is now a secondary visa holder to her husband’s Subclass 500 visa. He completed his PhD at the University of Queensland recently this year and his Subclass 500 visa expires on 1 August 2021.

12. Given that the applicant and her husband both received financial support from the Chilean Government to undertake courses of study exceeding 12 months in duration, and neither have departed Australia for a period of at least two years since the completion of their studies, if they fall within the ambit of the provisions of either SRC 5010(1) or (2) then they must satisfy the requirements of SRC 5010(5).

13. The applicant is not presently the holder of a Foreign Affairs Student visa, nor does she currently hold a Student visa with financial support provided by the Chilean Government given that she is now a secondary visa holder to her husband’s Subclass 500 visa. The visa that she presently holds is a substantive visa. Therefore, as also identified by the delegate, the applicant’s circumstances do not now fall within the ambit of SRC 5010(1) or (2). Accordingly, the Tribunal finds that the applicant satisfies SRC 5010. For completeness, the Tribunal also finds that the children of the applicant (the third and fourth named applicants) also satisfy SRC 5010, as they have not been granted a Student visa on the basis of financial support provided by the Chilean Government (or any other Government of a foreign country).

14. The husband of the applicant (the second named applicant) still holds a Subclass 500 visa on the basis of financial support provided by the Chilean Government to him. Therefore, he falls within the ambit of SRC 5010(1)(b). As he is a member of the family unit of the applicant, he must satisfy SRC 5010 in order for the applicant to be granted the Subclass 190 visa.

15. The applicant submitted to the Tribunal a letter from the Chilean National Agency for Research and Development (Department for Science, Technology, Knowledge & Innovation) dated April 2020 supporting the grant of Australian visas to her and her husband. This correspondence is unambiguous and notes support for the granting of permanent resident visas to them, notwithstanding the financial support provided. Therefore, the Tribunal finds that the second named applicant satisfies SRC 5010(5)(a).

16. For the above reasons, the applicant and all members of the family unit satisfy SRC 5010. The Tribunal so finds. For completeness, the Tribunal also finds that none of the applicants’ circumstances fall within the ambit of SRC 5001 and 5002, therefore they each satisfy these criteria.

17. It follows that the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for Subclass 190 visas.

18. Regarding the secondary visa applicants, the Tribunal finds that the second, third and fourth named applicants each satisfy cl.190.313. As the second, third and fourth named applicants applied for the visas on the basis of being a member of the family unit of the applicant, their applications will ultimately be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.

    DECISION

19. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

    ·cl.190.217 of Schedule 2 to the Regulations; and

    ·the second, third and fourth named applicants each satisfy cl.190.313 of Schedule 2 to the Regulations.

    K. Chapman
    Member