VASQUEZ VASQUEZ (Migration)

[2024] AATA 770

VASQUEZ VASQUEZ (Migration) [2024] AATA 770 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs PAOLA ANDREA VASQUEZ VASQUEZ
Mr FELIPE ANTONIO REYES CORNEJO

CASE NUMBER:  2208178

HOME AFFAIRS REFERENCE(S):          BCC2021/379922

MEMBER:Karen McNamara

DATE:3 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 03 April 2024 at 12:51pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – relevant study completed within 6 months before visa application – course completed after visa application – qualifications in public health and health management – referral for Ministerial Intervention – employment offer for research project promoting obstetrics and childcare in Indigenous Australians – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, ss 65, 351, 360
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231 - 485.235, 485.311; rr 1.03, 1.15, 2.26

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 19 May 2022, to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 March 2021. 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 case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include the criteria in Subdivision 485.23.

3. Information before the Tribunal shows that on 19 May 2022, the delegate refused to grant the visa because the first named applicant Mrs Paola Andrea Vasquez Vasquez (the applicant) did not satisfy cl.485.231 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant’s qualification Master of Public Health can be used to satisfy the Australian study requirement, as the qualification was completed more than 6 months ending immediately before the day the application was made.

4. The delegate also found that the second named applicant, Mr Felipe Antonio Reyes Cornejo could not be granted a Subclass 485 visa, as he did not meet the secondary visa criterion (cl.485.311), requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 485 visa.

5. The applicants lodged an application for review with the Tribunal on 4 June 2022. The application was accompanied by the following;

   ·Primary decision record dated 19 May 2022

   ·Letter from The University of Queensland dated 10 March 2021.

   ·Confirmation of University records as of 1 April 2022

   ·Graduation certificate 15 July 2021

   ·Submission by applicant dated 4 May 2022

   ·Offer/Contract of casual appointment – The University of Queensland dated 1 April 2022

   ·Statement of Employment and Position Description - Pearl Home Care dated 30 May 2022

   ·Resume – Paola Vasquez

   ·Copy of passport biodata page - Mrs Paola Andrea Vasquez Vasquez

6. On 4 March 2024, the Tribunal invited the applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal via telephone on 19 March 2024.

7. On 8 March 2024, the applicant provided to the Tribunal a submission dated 7 March 2024 and offer/contract of employment from Murdoch University dated 6 March 2024.

8. On 19 March 2024, the applicants represented by Mrs Paola Andrea Vasquez Vasquez appeared before the Tribunal via telephone to give evidence and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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)) or, 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)).

12. The issue in the present case 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?

13. Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A).

14. There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b).

15. The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and as such cl 485.231 does apply.

    Does the applicant hold a specified qualification?

16. Clause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013.

17. For the purpose of cl.485.231(1) of Schedule 2 of the Regulations, IMMI 13/013 specifies the following qualifications that are as a result of study undertaken at Australian Qualifications Framework (AQF) level seven or higher

    (a) Bachelor Degree;

    (b) Bachelor (Honours) Degree;

    (c) Masters by Coursework Degree;

    (d) Masters by Research Degree;

    (e) Masters (Extended) Degree and/or;

    (f) Doctoral Degree.

18. In this case, the applicant holds a Master of Public Health degree which is a qualification specified in that instrument.

19. Therefore, the applicant satisfies cl.485.231(1).

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

20. Clause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister in an instrument in writing.

21. In this case, the applicant’s qualification was conferred by The University of Queensland, which is an educational institution specified in the relevant instrument.

22. Therefore, the applicant satisfies cl.485.231(2).

    Does the applicant meet the Australian study requirement?

23. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, 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.

24. 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 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.

25. ‘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: LIN 19/085.

26. At the time of application, the applicant declared she had completed a Master of Public Health degree, undertaken from 22 July 2019 to 15 February 2021. The applicant provided a letter of from The University of Queensland stating the applicant successfully submitted all assessment required to complete the requirements of her qualification. The letter however did not state the course completion date.  In further submissions to the Department the applicant provided a completion letter from the University which showed a graduation/ conferral date of 15 July 2021. The delegate noted the graduation date should not be confused with the completion date and afforded the applicant further opportunity to provide evidence of the date she completed her studies.

27. In response to the delegate’s request, the applicant provided a Study Report from the University of Queensland which showed that the applicant competed the course requirements on 4 June 2021.

28. The Department subsequently sent a third request to the applicant specifying the information to be contained within the completion letter from the University. In response, the applicant provided a letter of completion dated 5 April 2022 to the Department, which confirmed that the applicant completed her course on 4 June 2021. This confirmed that the course was completed after the application was made and the delegate therefore found that the coursework was not completed in the last 6 months ending immediately before the day the application was made.

29. In submissions before the Tribunal, the applicant does not dispute that she erred in submitting her application prior to completing her studies. The applicant told the Tribunal at the hearing that she mistakenly believed that the letter issued by the University dated 10 March 2021, confirming that she had successfully submitted all assessments, was notification of completion of her studies. It was not until she received her refusal letter that she realised her mistake and takes full responsibility for her misunderstanding of the visa requirements.

30. The Tribunal discussed with the applicant that relevant to this matter, the completion date is the date when the University determined that she met the academic requirements. In this case advice from the University shows 4 June 2021 is the date on which her results were finalised by the University.

31. Whilst the Tribunal is sympathetic to the applicant’s position, this is not a matter in which the legislation provides discretion. The Tribunal does not have any discretion to waive the requirement that the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day the visa application was made.

32. Based on available evidence, the Tribunal is satisfied that the applicant completed a Master of Public Health degree from The University of Queensland on 4 June 2021. Her Master of Public Health is a registered course. The course was completed in a total of at least 16 calendar months as a result of at least 2 years academic study and the course was conducted in English. The course was conducted in Australia and the applicant held a visa permitting the relevant study during this period. Accordingly, the Tribunal finds that the applicant satisfies the Australian study requirement.

33. Having regard to available evidence, the Tribunal finds that the applicant satisfied the Australian study requirement on 4 June 2021 which is after the date the applicant submitted her application to the Department on 12 March 2021. Because the applicant applied for the visa prior to the completion of her Master of Public Health degree, the Tribunal cannot be satisfied that the applicant met the Australian study requirement in the 6 months ending immediately before the day the application was made.

34. The Tribunal therefore finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application.

35. Accordingly, cl. 485.231(3) is not met.

36. On the basis of the above findings, the Tribunal finds that the applicant does not meet         cl 485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

37. As the first named applicant is found not to have met the prescribed criteria for a subclass 485 visa, the second named applicant, Mr Felipe Antonio Reyes Cornejo as a member of Mrs Paola Andrea Vasquez Vasquez’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.485.311.

    Request for Referral to the Minister

38. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

39. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

40. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.

41. The circumstances which may be unique or exceptional in this case include, relevantly:

    ·Exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia;

    ·Circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation leads to unfair or unreasonable results in a particular case.

    Is this an appropriate case to refer to the Minister?

42. The applicant is a 44-year-old national of Chile who is a qualified midwife with over fifteen years’ experience in working with vulnerable communities in implementing health policies, training health professionals, and undertaking research fellowships.  

43. The Tribunal notes that the intent of the Temporary Graduate (class VC) Subclass 485 visa is to provide opportunity to international students who have recently graduated with qualifications that are relevant to specific occupations required in Australia, to temporarily live, study and work in Australia.

44. In the circumstances of this matter, the applicant does not dispute that she erred in the timing of submitting her application to the Department. The applicant as noted previously in this decision misunderstood the timing of the formal completion of her studies and lodged her application before she formally completed her qualification of Master of Public Health. The applicant has extensive experience in medical research having worked as Research Assistant at the Centre for Health Services Research at the University of Queensland, in addition to working as an Associate Professor in topics such as public health and health management as part of the Advanced Practice Nursing Master curriculum at the San Sebastian University in Chile.

45. Information before the Tribunal shows that the applicant has been offered a three-year fixed term position as a Research Fellow at Murdoch University in Perth. The role involves implementation and research associated with a project that promotes obstetrics and childcare in Indigenous Australians.

46. The Tribunal considers the applicant’s extensive experience in midwifery and Public Health research and administration, will potentially contribute benefits that may be considered 'unique or exceptional' in Australia. The Tribunal acknowledges that the effects of COVID-19, along with the changing economic landscape, have created challenges in attracting and retaining skilled workers particularly in regional Australia and in the Indigenous healthcare sector. The Tribunal acknowledges, if offered opportunity to do so, the applicant will continue to contribute to medical research and Indigenous health programs through her work as a Research Fellow at Murdoch University.

47. Additionally, having regard to the circumstances of the primary applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicants’ case. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act.

48. The Tribunal therefore requests that the matter be referred to the Department to be brought to the Minister's attention.

    DECISION

49. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Karen McNamara
    Member