Dilraj Singh (Migration) - [2020] AATA 4931

Dilraj Singh (Migration) [2020] AATA 4931 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dilraj Singh
CASE NUMBER:  1924857
HOME AFFAIRS REFERENCE(S):          BCC2019/2893608
MEMBER:Warren Stooke AM
DATE:9 October 2020
PLACE OF DECISION:  Melbourne
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 9 October 2020 at 5:56pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Painting Trades Worker – Australian study requirement – Diploma of Building and Construction (Building) – qualification ‘closely related’ to nominated occupation – ANZSCO role description – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Pasula v Minister for Immigration & Anor [2010] FMCA 219
Talha v Minister for Immigration and Border Protection [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 Home Affairs on 21 August 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 6 June 2019. 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 (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 on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the completed Diploma of Building and Construction (Building) course was not considered as ‘closely related’ to the nominated occupation of Painting Trades Worker – ANZSCO 332211.
The applicant appeared before the Tribunal on 30 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant stated that he understood that the application was refused because the Department said his courses were not relevant to each other and that the Diploma is more relevant to management than his painting skills.
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…

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 Dilraj Singh (Migration)

Details

AGLC: Dilraj Singh (Migration) [2020] AATA 4931
Case: [2020] AATA 4931
Decision Date: 9 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Dilraj Singh, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) in the Graduate Work stream. The dispute centred on whether Mr. Singh met the primary criteria for this visa, specifically those relating to the Australian study requirement and the close relationship between his qualification and nominated occupation.

The legal issues before the Tribunal were whether the applicant satisfied clause 485.221 of Schedule 2 to the Migration Regulations 1994, which requires the applicant to have satisfied the Australian study requirement in the six months immediately preceding the visa application, and clause 485.222, which mandates that each qualification used to satisfy this requirement must be closely related to the applicant's nominated skilled occupation. The applicant nominated the occupation of Painting Trades Worker and relied on a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Building) to meet the Australian study requirement.

The Tribunal reasoned that the applicant had provided sufficient evidence to satisfy clause 485.221. Regarding clause 485.222, the Tribunal considered the applicant's explanation that painting is an integral part of the building and construction industry and that his Diploma of Building and Construction (Building) provided him with skills in estimating, safe construction practices, project organisation, quality control, measurements, calculations, working in confined spaces and at heights, and waste disposal, all of which he argued were relevant to his nominated occupation. The Tribunal accepted these submissions, finding that the Diploma of Building and Construction (Building) was closely related to the nominated occupation of Painting Trades Worker.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant had met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Regulations.

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 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 preceding 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 those requirements. The applicant stated that he arrived in Australia on 9 September 2015 and that he completed the following courses of study:a.Certificate III in Painting and Decorating at the Western Institute of Technology on 22 October 2017; and b.Diploma Building and Construction (Building) at the Harwood International College on 27 May 2019 The applicant provided evidence that he was granted a Bridging Visa A, with a health insurance maintenance condition 8501, on 4 June 2019 and that he has a health insurance policy with Allianz. The applicant provided evidence that he was successfully assessed for his trade skills by Trades Recognition Australia on 21 May 2019. The applicant provided evidence that he completed an IELTS English language test on 14 October 2017 with an overall test score of 8.0. The applicant stated that he had been working with a painting company named Melbourne Spectrum Painting since December 2018 and that he had previously worked with Jerry Building Design. In this regard, the applicant stated that he was paid $15.00 per hour with his prior employer and was paid $30.00 per hour with his current employer. In response the Tribunal noted to the applicant and the representative that the wage of $15.00 per hour was less than the minimum wage and that whilst this was not the subject of the matter before the Tribunal the applicant should further address this matter with the appropriate authority [Fair Work Ombudsman]. At this juncture, the Tribunal explained to the applicant the requirements of regulations 485.221 and 485.222 and asked the applicant, if he understood the requirements that had to be met, which the applicant responded he understood. The Tribunal requested that the applicant explain to the Tribunal why he considers that the Diploma of Building and Construction (Building) is ‘closely related’ to the nominated occupation of painting trades worker and the applicant responded with the following comments regarding the course and the nominated occupation:a.Painting is part of the building and construction industry and that his future career required more knowledge and skills;b.The college advised that the Diploma of Building and Construction (Building) is the most closely related to Building and Construction;c.The course enabled the applicant to:i.Estimate materials and labour and to then complete the labour and materials cost;ii.Perform construction safely; on time and how to organise a work order;iii.Project quality, as given by the owner regarding special materials, for example the painting finish;iv.Conduct measurements and calculations relevant to the project;v.Work in confined space and work at heights;vi.Dispose of waste materials, which included making the paints solid with a compound to effect proper disposal for the environment and that the leftover paints are used at other sites or donated to charities;vii.Visit to the site prior to commencing the work to prepare a material data sheet.

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 criterion for a Subclass 485 visa:·cl.485.221 of Schedule 2 to the Regulations; and ·cl.485.222 of Schedule 2 to the Regulations.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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