Vasquez Fernandez (Migration)

The Administrative Appeals Tribunal considered the matter of Vasquez Fernandez concerning an application for a Skilled Nominated (Permanent) (Class SN) visa, Subclass 190. The dispute centred on whether the applicant and her family unit satisfied Special Return Criterion 5010 (SRC 5010) for the purposes of clause 197.217 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the applicant and her husband, who had received financial support from the Chilean Government for their PhD studies in Australia, met the requirements of SRC 5010. This criterion is relevant when an applicant has held a student visa funded by a foreign government and has not departed Australia for at least two years after completing their studies. The Tribunal had to ascertain whether the conditions of SRC 5010(1) or (2) were met, and if so, whether the applicant satisfied the further requirements of SRC 5010(5).

The Tribunal reasoned that both the applicant and her husband had received scholarships from the Chilean Government for their PhD studies, which exceeded 12 months in duration. As neither had departed Australia for at least two years since completing their studies, they potentially fell within the ambit of SRC 5010(1) or (2). The Tribunal concluded that the second, third, and fourth named applicants (family members) satisfied clause 190.313.

Consequently, the Tribunal remitted the applications for Skilled Nominated (Permanent) visas for reconsideration. The direction was that the first named applicant meets clause 190.217, and the other named family members satisfy clause 190.313.