Angrej Singh (Migration) - [2022] AATA 3147

Angrej Singh (Migration) [2022] AATA 3147 (26 August 2022)

Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Angrej Singh Angrej Singh
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  2118590
HOME AFFAIRS REFERENCE(S):          BCC2017/3125082
MEMBER:Wan Shum
DATE OF DECISION:  26 August 2022
DATE CORRIGENDUM
SIGNED:16 September 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

Paragraph 7 should be amended so that it becomes “For the following reasons the Tribunal has concluded that the matter should be affirmed”.

Wan Shum
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Angrej Singh Angrej Singh
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  2118590
HOME AFFAIRS REFERENCE(S):          BCC2017/3125082
MEMBER:Wan Shum
DATE:26 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 26 August 2022 at 11:52am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Federal Circuit and Family Court remittal – Australian study requirement satisfied within 6 months before application made – qualification closely related to nominated occupation – qualification in leadership and management and occupation of chef – comparison of units of study with ANZSCO description and skills assessment requirements – assessment of whole of qualification and whole of occupation required – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cls 485.221, 485.222
CASES
Seema v MIAC [2012] FCA 257
Singh v MICSMMA [2021] FedCFamC2G 208
Talha v MIBP [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 Immigration and Border Protection on 18 October 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 August 2017. 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 visa finding that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate did not consider that the Diploma of Leadership and Management was closely related to his nominated occupation of Chef (ANZSCO Code: 351311).
The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.
On 5 August 2020, the Tribunal, differently constituted, decided to affirm the decision of the delegate.…

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 Angrej Singh (Migration)

Details

AGLC: Angrej Singh (Migration) [2022] AATA 3147
Case: [2022] AATA 3147
Decision Date: 26 August 2022

CaseChat Overview and Summary

The applicant, Angrej Singh, sought review of a decision concerning his eligibility for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The core dispute revolved around whether the applicant's Australian qualifications were "closely related" to his nominated occupation of Chef, as required by the visa regulations. The matter was heard by Wan Shum of the Tribunal.

The Tribunal was required to determine if the applicant satisfied the criteria for the Subclass 485 visa, specifically focusing on clause 485.222 of Schedule 2 to the Regulations. This clause mandates that each degree, diploma, or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant's nominated skilled occupation. The applicant had nominated the occupation of Chef and presented several qualifications, including a Diploma of Leadership and Management.

In its reasoning, the Tribunal considered the applicant's submission that units within his Diploma of Leadership and Management were relevant to the duties of a Chef, such as planning, organising, and enforcing hygiene regulations. However, the Tribunal found that the applicant had merely restated the words from the ANZSCO description of the occupation and had not provided sufficient evidence to demonstrate how the specific subjects studied in the Diploma of Leadership and Management actually related to the practical aspects of planning dishes or organising food preparation and cooking. The Tribunal concluded that the applicant had not established that the qualification was closely related to the nominated occupation.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, as he failed to satisfy the visa criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be affirmed/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 the second of those requirements.Is the qualification ‘closely related’ to the nominated occupation? In this case, the applicant nominated the occupation of Chef (ANZSCO Code: 351311) which is a skilled occupation specified in IMMI 18/051. The applicant provided the following details of studies undertaken in Australia on the application form, being:·Certificate III in Commercial Cookery at Empyrean Education Institute from 29 September 2014 to 14 October 2015;·Certificate IV in Commercial Cookery at Empyrean Education Institute from 29 September 2014 to 25 March 2016; ·Diploma of Hospitality at Empyrean Education Institute from 28 April 2016 to 1 September 2016; and ·Diploma of Leadership and Management at Keystone College from 28 August 2017 to 10 February 2019. The Diploma of Leadership and Management course is registered for a period of 52 weeks on CRICOS, as is the Diploma of Hospitality while the Certificate III and IV in Commercial Cookery appear to have been packaged together for 80 weeks, the courses are registered for 184 weeks which is more than 2 academic years as defined. The study for these qualifications was undertaken for more than 16 months and all courses were delivered in English. The Tribunal finds that the Certificate III and Certificate IV and Diploma of Hospitality and Diploma of Leadership and Management meet the Australian study requirement as defined in reg 1.15F. According to the academic transcripts, the applicant undertook the following units in the Diploma of Leadership and Management: In addressing whether the study was closely related to the occupation of chef, the applicant had provided a statement to the Department where he identified subjects studied in the Diploma of Leadership and Management and explained the relevance to the nominated occupation. In that statement he identified the units which he considered were relevant to selected duties. A summary follows. The units ‘Manage operational plan’, ‘Facilitate continuous improvement’, ‘Develop and Implement a Business Plan’, ‘Manage quality customer service’ and ‘Ensure a safe workplace’ were identified as being relevant to the duties of planning and organising preparation and cooking of food for dining and catering establishments; preparing and cooking food; explaining and enforcing hygiene regulations. The relevance is stated as: “From these subjects, I have learnt the entire process but not limited to planning, organising, executing and taking feedback on the tasks that I take up. These learning's help me to plan dishes, organise preparation and cooking of food, managing wastes in an efficient manner. Also, these subjects improvise skillset to formulate hygiene regulations implement it and monitor on continuous basis so that hygiene in the kitchen is maintained as per standards.” Other then restating the words in the duties, it is not apparent on the evidence how the subjects relate to planning dishes or organising the preparation and cooking of food.

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 applicant a Skilled (Provisional) (Class VC) visa.Wan ShumMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.