Andarage (Migration) - [2020] AATA 4107

Andarage (Migration) [2020] AATA 4107 (10 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kasun Umayanga Silva Andarage
Mrs Sachini Pavithra Gangabada Arachchige
CASE NUMBER:  1808215
HOME AFFAIRS REFERENCE(S):          BCC2018/215579
MEMBER:Kira Raif
DATE:10 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 10 September 2020 at 10:08am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Australian study requirement – Fitter (General) (ANZSCO 33211) – Diploma of Human Resources Management – qualification not closely related to occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cl 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Kabir v MIAC [2010] FMCA 577
Manik v MIAC [2012] FMCA 149
Talha v MIBP [2015] FCAFC 115
Shafiuzzaman v MIAC [2011] FMCA 874
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 14 March 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants are nationals of Sri Lanka. The first named applicant (‘the applicant’) was born in January 1988. The applicants applied for the visas on 14 January 2018. The delegate refused to grant the visas because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied each of the qualifications used to satisfy the Australian study requirement was closely related to the nominated occupation. The applicants seek review of the delegate’s decision.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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 applicant. 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 applicant was given a fair opportunity to give evidence and present arguments.
The applicants appeared before the Tribunal on 2 September 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 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.
The applicant is seeking…

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.

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Details

AGLC: Andarage (Migration) [2020] AATA 4107
Case: [2020] AATA 4107
Decision Date: 10 September 2020

CaseChat Overview and Summary

The applicant sought review of a decision by the Minister to refuse to grant them a Skilled (Provisional) (Class VC) visa, specifically under the Graduate Work stream. The applicant’s nominated occupation was Fitter (General) (ANZSCO 33211), and they held a Diploma of Human Resources Management.

The central legal issue before the Tribunal was whether the applicant satisfied the Australian study requirement for the Subclass 485 visa. This requirement mandates that the applicant's qualification must be closely related to their nominated occupation.

The Tribunal found that the applicant's Diploma of Human Resources Management was not closely related to the occupation of Fitter (General). Consequently, the applicant did not meet the criteria for the grant of the visa. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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