1500662 (Migration)

[2016] AATA 3569

1500662 (Migration) [2016] AATA 3569 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dharminder Pal Sharma

CASE NUMBER:  1500662

DIBP REFERENCE(S):  ASB2014/33926 CLF2015/4066

MEMBER:Michael Cooke

DATE:24 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

Statement made on 24 March 2016 at 2:10pm

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 Immigration on 5 January 2015 to refuse to grant the visa applicant a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 January 2014. At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research).

3. The criteria for a Subclass 402 visa are set out in Part 402 of Schedule 2 to the Migration Regulations 1994 (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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.

4. In the present case, the applicant is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills (including in the field of sport) through participation in workplace-based training in Australia. The delegate refused to grant the visa because the applicant did not meet cl.402.233 of Schedule 2 to the Regulations because the applicant did not meet the criteria for the grant of a Training and Research (Class GC) Occupational Trainee Stream visa

5. The applicant appeared before the Tribunal on 24 March 2016 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant has completed the principal course, at diploma level or higher, in Australia, in relation to which the relevant student visa was granted, and then seeks to undertake occupational training closely related to that course to be completed within 12 months. Or alternatively whether the applicant has completed the principal course in Australia in relation to which the relevant student visa was granted, and must complete a period of practical employment experience in order to obtain registration which is a prerequisite to practice the profession, either in Australia or in the applicant’s country of usual residence.

Study requirements

1. Clause 402.223 applies to applicants in the Occupational Trainee stream if they were in Australia at the time of application, and if at the time of application they either held a Subclass 570, 572, 573, 574 or 575 student visa, or their last substantive visa was such a visa. It can be met in two ways.

2. Firstly, it will be satisfied if the applicant has completed the principal course, at diploma level or higher, in Australia, in relation to which the relevant student visa was granted, and seeks to undertake occupational training closely related to that course to be completed within 12 months.

3. Alternatively, it will be satisfied if the applicant has completed the principal course in Australia in relation to which the relevant student visa was granted, and must complete a period of practical employment experience in order to obtain registration which is a prerequisite to practice the profession, either in Australia or in the applicant’s country of usual residence.

Findings and reasons as to whether:

·The application was made in Australia and the applicant held the relevant student visa at the time of application, or last held such a visa.

1. The applicant meets the requirement.

   ·What the relevant principal course is, and whether it is at diploma level of higher, and

2. The relevant principal course was a Bachelor of Professional Accounting.

   ·Whether that course has been completed,

3. The course has been not completed according to information in the delegate’s decision record and confirmed in the hearing.

   a.if it was at diploma level or above only, whether the occupational training is closely related to that principal course and will be completed within 12 months,

4. The Tribunal finds that the occupational training (Pastry Cook) is not closely related to the principal course - Bachelor of Professional Accounting.

   a.Whether the applicant must complete a period of practical employment experience in order to obtain compulsory registration to practice the profession in Australia or in the applicant’s usual country of residence.

5. The applicant does not have to complete a period of practical employment experience in order to obtain compulsory registration to practice the profession in Australia. There is no evidence that the applicant has to complete a period of practical employment experience in order to obtain compulsory registration to practice the profession in the applicant’s usual country of residence (India).

6. Therefore, cl.402.223 is not satisfied.

7. The applicant has only sought to satisfy the criteria for a Subclass 402 visa in the Occupational Trainee stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Occupational Trainee stream have not been met, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

Michael Cooke
Member