Bhullar (Migration)

Case [2018] AATA 5744

Bhullar (Migration) [2018] AATA 5744 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspreet Singh Bhullar

CASE NUMBER:  1730668

HOME AFFAIRS REFERENCE(S):           BCC2017/3146657

MEMBER:Susan Trotter

DATE:7 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 07 November 2018 at 4:00pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Motor Mechanic (General) – Australian study requirement – academic duration – Certificate III in Light Vehicle Mechanical Technology – Diploma of Leadership and Management – relation to nominated skilled occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kabir v MIAC [2010] FMCA 577
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28 
MIBP v Dhillon (2014) 227 FCR 525
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115

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 (the Minister) on 15 November 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant is a 26 year old citizen of India. He first arrived in Australia in December 2014 as the holder of a student visa. He has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 30 August 2017.

  3. 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).

  4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the Diploma of Leadership and Management qualification completed by the applicant is closely related to the applicant’s nominated skilled occupation of Motor Mechanic (General) (ANZSCO Code 321211) as required.

  5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 December 2017.

  6. The applicant appeared before the Tribunal on 6 November 2018 to give evidence and present arguments.

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

    ISSUES

  8. 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…

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Details
AGLC
Bhullar (Migration) [2018] AATA 5744
Case
[2018] AATA 5744
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, Graduate Work stream. The applicant sought to rely on a Certificate III in Light Vehicle Mechanical Technology and a Diploma of Leadership and Management to satisfy the Australian study requirement. The primary dispute revolved around whether these qualifications were sufficient and whether they were closely related to the applicant's nominated skilled occupation.

The Tribunal was required to determine two key issues: first, whether the applicant met the Australian study requirement in the six months immediately preceding the visa application, and second, whether each of the qualifications relied upon was closely related to the applicant's nominated skilled occupation. The Tribunal considered the definitions of "degree," "diploma," and "trade qualification" as provided by the regulations, particularly in relation to the Australian Qualifications Framework and relevant registration systems.

The Tribunal found that while the applicant had completed the listed courses, the evidence did not establish that they met the criteria for a "degree," "diploma," or "trade qualification" as defined for the purposes of the Australian study requirement. Furthermore, the Tribunal concluded that the qualifications were not closely related to the applicant's nominated skilled occupation. Consequently, the applicant failed to satisfy the criteria for the grant of the visa.

The Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that the issues to be determined by the Tribunal are:(a) Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?(b) Is each degree, diploma or trade qualification relied upon by the applicant to satisfy the Australian study requirement closely related to the applicant’s nominated skilled occupation?CONSIDERATION OF CLAIMS AND EVIDENCE The applicant listed the following Australian study in his visa application (unedited):Cert III in Light Vehicle New England College 5 Sep 2016 to Mechanical Technology Brisbane 15 Aug 2017Diploma of Leadership Queensland Institute of Commerce 3 Aug 2015 to And Management and Technology 1 Aug 2016Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application? The Tribunal first considered whether each of the courses completed by the applicant is a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met. Provider Registration and International Student Management System (PRISMS) records confirm that the applicant has completed a Certificate III in Light Vehicle Mechanical Technology and a Diploma of Leadership and Management. Regulation 2.26AC(6) provides as follows:degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:(a) the entry level to the course leading to the qualification is:(i) in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and(ii) in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and(iii) in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and(iv) in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and(b) in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.diploma means:(a) an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or(b) a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.…trade qualification means:(a) an Australian trade qualification obtained as a result of the completion of:(i) an indentured apprenticeship; or(ii) a training contract;that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:(iii) part-time formal training at a technical college or a college of technical and further education; and(iv) employment within the meaning of:(A) an industrial award under a law of the Commonwealth or of a State or Territory; or(B) a law of a State or Territory dealing with commercial or industrial training; or(b) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or(c) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

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.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

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