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Bhaskar (Migration)

Bhaskar (Migration)

Case [2024] AATA 296 6 February 2024

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Bhaskar (Migration) [2024] AATA 296 (6 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vinaykumar Mishrilal Bhaskar
CASE NUMBER:  2312168
HOME AFFAIRS REFERENCE(S):          BCC2017/380805
MEMBER:Karen McNamara
DATE:6 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the 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

Statement made on 06 February 2024 at 11:09am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Federal Circuit and Family Court remittal – Graduate Work stream – ICT Business Analyst – Australian study requirement – Graduate Diploma in Business – ‘closely related’ to nominated occupation – determined by reference to ANZSCO – Unit Group 2611 – Minor Group 261 – Sub Major Group 26 – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Talha v MIBP [2015] FCAFC 115
Tobon vs MIBP [2014] FCCA 2208
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 23 June 2017, to refuse to grant Mr Vinaykumar Mishrilal Bhaskar (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 January 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.
Information before the Tribunal shows that on 23 June 2017, the delegate refused to grant the visa because the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualification of Graduate Diploma in Business is closely related to the applicant’s nominated occupation of ICT Business Analyst (ANZSCO 261111).
The applicant lodged an application for review with the Tribunal on 30 June 2017 (AAT reference 1714082). The applicant appeared before the Tribunal (differently constituted) on 9 October 2018, to give evidence and present arguments. On 9 October 2018, the Tribunal affirmed the decision under review. The applicant subsequently sought judicial review of that decision, and on 11 July 2023, the Federal Circuit and Family Court of Australia (FCAFCOA) remitted the matter back to the Tribunal for reconsideration and redetermination according to law.
Having consideration to the totality of evidence before it…

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 Bhaskar (Migration)

Details

AGLC: Bhaskar (Migration) [2024] AATA 296
Case: [2024] AATA 296
Decision Date: 6 February 2024

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant sought to have their visa application reconsidered, with the primary dispute revolving around whether the applicant met the criteria for satisfying the ‘Australian study requirement’ and the ‘closely related’ qualification requirement for their nominated occupation.

The court was required to determine if the applicant had satisfied the ‘Australian study requirement’ as defined by regulation 1.15F(1) of the Migration Regulations 1994, which involves completing registered courses in Australia totalling at least 16 calendar months and at least two academic years of study. Furthermore, the court had to assess whether the applicant's qualifications, specifically a Graduate Diploma in Business, were ‘closely related’ to their nominated occupation as an ICT Business Analyst, as required by clause 485.222(1) of Schedule 2 to the Regulations.

The Tribunal found that the applicant had provided sufficient evidence, including letters of completion and academic transcripts, to demonstrate the completion of a Diploma of Business Administration, a Bachelor of Business (Information Systems), and a Graduate Diploma in Business within the stipulated timeframes and durations. Based on this evidence, the Tribunal concluded that the applicant met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the applicant's visa application to the Minister for reconsideration, with a direction that the applicant had satisfied the Australian study requirement and the closely related qualification requirement.

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 provisions 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, unless limited circumstances apply, 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(1)). The issue in the present case is whether the applicant meets those requirements. Information before the Tribunal shows that at the time of application to the Department, the applicant stated that he completed the following studies in Australia:· Diploma of Business Administration attained from Strathfield College from 14 July 2009 to 25 July 2010.· Bachelor of Business (Information Systems) attained from Victoria University from 25 July 2011 to 26 July 2013.· Graduate Diploma in Business attained from Holmes Institute 11 November 2013 to 7 November 2016. 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; and·that were completed in a total of at least 16 calendar months; and·that were completed as a result of a total of at least 2 academic years study; and·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. ‘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 or courses registered under the Education Services for Overseas Students Act 2000 (Cth): IMMI 09/040[1][1] IMMI 09/040 states (b) 2 academic years is at least a total of 92 weeks, being the duration of a course or courses registered under s 9 of the Education Services for Overseas Students Act 2000 At the time of application, the applicant declared he had completed the following qualifications: Graduate Diploma in Business attained from Holmes Institute from 11 November 2013 to 7 November 2016. Bachelor of Business (Information Systems) attained from Victoria University from 25 July 2011 to 26 July 2013 and Diploma of Business Administration attained from Strathfield College from 14 July 2009 to 25 July 2010. In evidence before the Tribunal the applicant has provided letters of completion and academic transcripts supporting said studies and completion dates.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the 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.Karen McNamaraMember

Ratio Decidendi

Legal Principle Established

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Citations

Bhaskar (Migration) [2024] AATA 296

Cases Citing This Decision

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Cases Cited

Kshatry v Minster for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 707
Citation 1 (Para 27)

…e relevant ANZSCO occupation. However, the central significance of the ANZSCO Code is implicit in the Court’s reasoning. See also Kshatry v MICMA [2022] FedCFamC2G 707 at [67] where the Court found ANZSCO is expressly adopted to apply by virtue of legislative instrument and rejected the argument that ANZSCO is not deleg…
Setiya v MICMSMA [2021] FCCA 544
Citation 2 (Para 27)

…of legislative instrument and rejected the argument that ANZSCO is not delegated legislation without the force of law. See also Setiya v MICMSMA [2021] FCCA 544 which at [37] noted the reference to ANZSCO in Column 2 of IMMI 17/072 must have some function, even if ‘Note 1’ in IMMI 17/072 suggests it is for ‘infor…
Talha v MIBP [2015] FCAFC 115
Citation 3 (Para 27)

…of the occupation itself, but also relevant information in the higher groupings into which the nominated occupation falls.[6] [4] See Talha v MIBP [2015] FCAFC 115. The central question in this case was not whether the nominated occupation must necessarily be determined by reference to ANZSCO, but rather whether t…
Walia v MIBP [2015] FCCA 1949
Citation 4 (Para 7)

…erion, consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation.[11] [11] In Walia v MIBP [2015] FCCA 1949 the applicant argued unsuccessfully, with reference to Tobon v MIBP [2014] FCCA 2208, that the Tribunal had applied the wrong test in regard to wheth…
MIBP v Dhillon [2014] FCAFC 157
Citation 5 (Para 19)

…o things. They do not require an exact correspondence.[2] However, the relationship must be more than merely complementary.[3] [2] MIBP v Dhillon (2014) 227 FCR 525 at [20]; see also Constantino v MIBP [2013] FCA 1301 at [33] quoting with approval Prasad v MIAC [2012] FCA 591 at [33]. [3] Uddin v MIAC [2010] FCA 1281…
Tobon v Minister for Immigration & Anor [2014] FCCA 2208
Citation 6 (Para 4)

…a substantial proportion of which, fall or falls within the set of skills associated with the carrying on of the occupation.[8] [7] Tobon vs MIBP [2014] FCCA 2208 [8] Tobon v MIBP [2014] FCCA 2208 at [25].…
Constantino v MIBP [2013] FCA 1301
Citation 7 (Para 19)

…] However, the relationship must be more than merely complementary.[3] [2] MIBP v Dhillon (2014) 227 FCR 525 at [20]; see also Constantino v MIBP [2013] FCA 1301 at [33] quoting with approval Prasad v MIAC [2012] FCA 591 at [33]. [3] Uddin v MIAC [2010] FCA 1281 at [10]–[12] where North J rejected the argument tha…
Sunil Prasad v Minister For Immigration And Citizenship and Anor [2013] HCASL 34
Citation 8 (Para 19)

…ful’ as used in PAM3 at that time. This approach was followed in Prasad v MIAC [2012] FCA 591 (special leave refused: Prasad v MIAC [2013] HCASL 34) and approved in Constantino v MIBP [2013] FCA 1301 and MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Shafiuzzaman v MIAC [2011] FMCA 874 at [37]–[38] and Manik…
Manik v MIAC [2012] FCA 619
Citation 9 (Para 19)

…See also Shafiuzzaman v MIAC [2011] FMCA 874 at [37]–[38] and Manik v MIAC [2012] FMCA 149 at [13], upheld on appeal Manik v MIAC [2012] FCA 619 at [19]–[20].…
Prasad v MIAC [2012] FCA 591
Citation 10 (Para 19)

…entary.[3] [2] MIBP v Dhillon (2014) 227 FCR 525 at [20]; see also Constantino v MIBP [2013] FCA 1301 at [33] quoting with approval Prasad v MIAC [2012] FCA 591 at [33]. [3] Uddin v MIAC [2010] FCA 1281 at [10]–[12] where North J rejected the argument that the Tribunal misunderstood the term ‘closely related’ by…
Seema v MIAC [2012] FCA 257
Citation 11 (Para 27)

…ons for that occupation in the ANZSCO code. See also Wang v MIMIA [2005] FCA 843, MIAC v Kamruzzaman [2009] FCA 1562 and Seema v MIAC (2012) 203 FCR 537 where the relevance of ASCO/ANZSCO was considered in the analogous context of whether the applicant’s employment is closely related to the nominated occupation. [5]…
Shafiuzzaman v MIAC [2011] FMCA 874
Citation 12 (Para 19)

…34) and approved in Constantino v MIBP [2013] FCA 1301 and MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Shafiuzzaman v MIAC [2011] FMCA 874 at [37]–[38] and Manik v MIAC [2012] FMCA 149 at [13], upheld on appeal Manik v MIAC [2012] FCA 619 at [19]–[20].…
Uddin v MIAC [2010] FCA 1281
Citation 13 (Para 19)

…FCR 525 at [20]; see also Constantino v MIBP [2013] FCA 1301 at [33] quoting with approval Prasad v MIAC [2012] FCA 591 at [33]. [3] Uddin v MIAC [2010] FCA 1281 at [10]–[12] where North J rejected the argument that the Tribunal misunderstood the term ‘closely related’ by departing from what was then set out in PA…
MIAC v Kamruzzaman [2009] FCA 1562
Citation 14 (Para 27)

…to convey must be the specifications for that occupation in the ANZSCO code. See also Wang v MIMIA [2005] FCA 843, MIAC v Kamruzzaman [2009] FCA 1562 and Seema v MIAC (2012) 203 FCR 537 where the relevance of ASCO/ANZSCO was considered in the analogous context of whether the applicant’s employment is closely relat…
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843
Citation 15 (Para 27)

…rmation’ the reference is intended to convey must be the specifications for that occupation in the ANZSCO code. See also Wang v MIMIA [2005] FCA 843, MIAC v Kamruzzaman [2009] FCA 1562 and Seema v MIAC (2012) 203 FCR 537 where the relevance of ASCO/ANZSCO was considered in the analogous context of whether the app…
The Tribunal continued:18.The Tribunal also relies on the reasoning in Manik v MIAC [2012] FMCA 149
Citation 16 (Para 19)

…CA 1301 and MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Shafiuzzaman v MIAC [2011] FMCA 874 at [37]–[38] and Manik v MIAC [2012] FMCA 149 at [13], upheld on appeal Manik v MIAC [2012] FCA 619 at [19]–[20].…

Legislation Cited

Migration Act 1958 (Cth) 360, 65
3 mentions (from Para 1)
Migration Regulations 1994 (Cth) 1.15F
2 mentions (from Para 2)
Education Services for Overseas Students Act 2000 (Cth)
1 mention (from Para 10)