Vergel Osorio (Migration) - [2022] AATA 5206

Vergel Osorio (Migration) [2022] AATA 5206 (19 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Eduardo Luis Vergel Osorio
Miss Mariapaula Ojeda Perez
REPRESENTATIVE:  Ms Sara Khodajoo (MARN: 1467027)
CASE NUMBER:  1934545
HOME AFFAIRS REFERENCE(S):         BCC2019/4614703
MEMBER:Warren Stooke AM
DATE:19 December 2022
PLACE OF DECISION:  Melbourne
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
·cl 485.311 of Schedule 2 to the Regulations

Statement made on 19 December 2022 at 2:31pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Petroleum Engineer – Australian study requirement – Advanced 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, 485.311
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 18 November 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 15 September 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 visas on the basis that the first named applicant (the applicant) did not satisfy cl 485.222 of Schedule 2 to the Regulations because the courses of study undertaken were not ‘closely related’ to the nominated occupation of Petroleum Engineer – ANZSCO Code: 233612.
The applicants appeared before the Tribunal on 15 December 2022 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that he had provided a copy of the delegate’s decision to the Tribunal with his application for review. The applicant stated that it was his understanding that the application was refused because the courses studied did not have anything to do with the Engineering qualification previously studied and that the courses were not closely related to the occupation of Petroleum Engineer.
For the following reasons, the Tribunal has concluded that the matter should be…

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 Vergel Osorio (Migration)

Details

AGLC: Vergel Osorio (Migration) [2022] AATA 5206
Case: [2022] AATA 5206
Decision Date: 19 December 2022

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant, a Petroleum Engineer, sought to satisfy the criteria for this visa, which included meeting the Australian study requirement and ensuring that any qualifications used to meet this requirement were closely related to their nominated occupation. The decision under review was made by the Tribunal.

The central legal issues before the Tribunal were whether the applicant had satisfied the Australian study requirement within the six months preceding their visa application, and crucially, whether the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management, completed in Australia, were "closely related" to the applicant's nominated occupation of Petroleum Engineer. The applicant contended that these management studies provided skills relevant to project work in an office environment, as opposed to field work.

The Tribunal considered the applicant's qualifications, including a Bachelor's degree in Petroleum Engineering obtained overseas and the Australian-based diplomas in Leadership and Management. It also noted the applicant's skills assessment from Engineers Australia confirming their suitability as a Petroleum Engineer. The Tribunal ultimately concluded that the applicant had met the criteria for the Subclass 485 visa, including both the Australian study requirement and the requirement that their qualifications were closely related to their nominated occupation.

Consequently, the Tribunal remitted the applications for reconsideration with a direction that the primary applicant met the specified criteria for the Subclass 485 visa, including clauses 485.221, 485.222, and 485.311 of Schedule 2 to the Regulations. This implied that the secondary applicant, as a member of the family unit, also met the relevant criteria.

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 31 year old from Columbia, who stated that he arrived in Australia on 31 December 2015 and was granted a Bridging Visa A on 15 September 2019 with condition 8501, which requires the applicant to maintain health insurance. The Bridging Visa A commenced at the end of his Student (Temporary) Visa on 21 September 2019. The applicant provided evidence of health insurance with Bupa that commenced on 21 September 2019 and the applicant was subject of a medical clearance on 15 September 2019. The applicant provided evidence that he completed a bachelor degree in Petroleum Engineering at Fundacion Universidad de America, which was awarded in April 2016. The applicant provided evidence that he completed the following courses of study whilst resident in Australia:a.Diploma of Leadership and Management from 3 April 2017 to 1 April 2018;b.Advanced Diploma of Leadership and Management from 2 April 2018 to 21 July 2019. The applicant provided evidence from Engineers Australia of a skills assessment, dated 22 October 2019, that meets the current requirement for the following occupation relating to the Occupational Classification ANZSCO Skill Level for a Petroleum Engineer, as follows:·Professional Engineer: Skill Level 1 Petroleum Engineer ANZSCO Code 233612 and assessed in April 2016 The applicant has provided evidence of an International Police Clearance dated 26 August 2019 to the effect that the applicant has ‘no criminal record’ and an AFP Police check on a name search that identifies ‘no disclosable court outcomes’. The applicant gave evidence that he had previously tried to gain employment as a Petroleum Engineer but because of his visa status was not able to gain such employment to give him the opportunity to work as a Petroleum Engineer. The applicant stated that he is currently working as a Business Manager in an accommodation business. The Tribunal explained to the applicant that the issue currently before the Tribunal was whether the courses studied in Australia are ‘closely related’ to the nominated occupation of Petroleum Engineer, which the applicant acknowledged he understood. The Tribunal asked the applicant to explain to the Tribunal why he considered the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management to be ‘closely related’ to the nominated occupation of Petroleum Engineer. The applicant responded that the studies of Leadership and Management provided skills related to the position of Petroleum Engineer for work in an office to carry out projects, as opposed to the alternative to work in the field, which he experienced in his work in Columbia.

Decision

Reasons for decision

On the basis that the Tribunal is satisfied that the primary applicant has met the criteria for the grant of a 485 visa, it follows that the secondary applicant is a member of a family unit that has met the relevant criteria.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;·Cl 485.311 of Schedule 2 to the Regulations.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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