Frois Rodrigues (Migration) - [2021] AATA 262

Frois Rodrigues (Migration) [2021] AATA 262 (8 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Leticia Frois Rodrigues
CASE NUMBER:  1817466
HOME AFFAIRS REFERENCE(S):          BCC2018/1212572
MEMBER:Denise Connolly
DATE:8 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 8 February 2021 at 4:12pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement within 6 months before application made – last qualification closely related to nominated skilled occupation – ANZSCO description of occupation – qualification in leadership and management complementary but not closely related to occupation as chef – advised by agent that course closely related to occupation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Manik v MIAC [2012] FMCA 149; [2012] FCA 619
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIAC [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1282
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 30 May 2018 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 14 March 2018. 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 the applicant.
The delegate refused to grant the visa on the basis the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant’s Advanced Diploma of Leadership and Management qualification is closely related to the nominated skilled occupation, Chef (ANZSCO 351311).
The Tribunal was intending to invite the applicant to appear before it on 6 January 2021 however the applicant’s representative advised that her office would be closed over the holiday period and would resume normal work hours from 11 January 2021. She asked that the hearing be set down after 25 January 2021 to allow her two weeks to prepare. The Tribunal agreed to change the hearing date to 27 January 2021. The representative confirmed orally that this was suitable. The representative then wrote to the Tribunal advising that the applicant is a FIFO worker and would be flying to the mine on 26 January 2021 and working remotely. The Tribunal brought the hearing forward, to 21 January 2021. The representative confirmed that the applicant would attend the hearing.
The representative contacted the Tribunal on 19 January 2021 and requested a postponement of hearing because she had injured her back. There was no evidence to suggest 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 Frois Rodrigues (Migration)

Details

AGLC: Frois Rodrigues (Migration) [2021] AATA 262
Case: [2021] AATA 262
Decision Date: 8 February 2021

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 (Temporary Graduate) visa in the Graduate Work stream. The applicant sought to satisfy the primary criteria for this visa, which included a requirement that their Australian qualifications be closely related to their nominated skilled occupation. The decision under review affirmed the refusal of this visa.

The central legal issue before the Tribunal was whether the applicant's qualification in leadership and management was "closely related" to the nominated skilled occupation of Chef (ANZSCO 351311), as required by clause 485.222 of Schedule 2 to the Regulations. The Tribunal was required to determine if the applicant met this criterion, considering that the term "closely related" is not statutorily defined but has been interpreted by courts to mean more than merely complementary.

The Tribunal reasoned that the assessment of whether a qualification is "closely related" to a nominated occupation must focus on the nominated occupation itself, as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). It is not sufficient for some subjects within a qualification to be closely related; the entirety of the Australian studies must be compared with the entirety of the nominated skilled occupation. In this instance, the Tribunal found that while a qualification in leadership and management might be complementary to the occupation of a chef, it was not "closely related" in the sense required by the legislation. The Tribunal gave substantial weight to the ANZSCO description of the Chef occupation and concluded that the applicant's qualification did not meet the necessary threshold of closeness.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa. As this was the only relevant subclass in this case, the application was dismissed.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCERelevant law The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.222 of Schedule 2 to the Regulations. It requires that each degree, diploma or trade qualification used by the applicant to satisfy the requirement must be closely related to the applicant’s nominated skilled occupation, Chef (ANZSCO 351311). The issue in this case is whether the applicant meets that requirement. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument 18/051. The term 'closely related' is not defined in the legislation but it has been considered by the Courts which have held that the connection between the two things does not require an exact correspondence[1] but must be more than merely complementary.[2] In making the assessment, it is necessary to focus on the nominated occupation rather than on the applicant’s claimed or proposed occupation or career path. The Tribunal is entitled to give substantial weight to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) descriptions.[3] The Court has held that the nature of the nominated occupation must be determined by reference to ANZSCO[4] and that the ANZSCO code needs to be read as a whole including, not only the statement of tasks specified in the relevant unit group or at the lower level of the occupation itself, but also relevant information in the higher groupings into which the nominated occupation falls.[5][1] MIBP v Dhillon (2014) 227 FCR 525.[2] Uddin v MIAC [2010] FCA 1282.[3] Manik v MIAC [2012] FMCA 149 citing Shukla v MIAC [2010] FMCA 625, Kabir v MIAC [2010] FMCA 577 and Chawdhury v MIAC [2010] FMCA 275. [4] Talha v MIAC [2015] FCAFC 115.[5] Ibid. The Tribunal must objectively consider the relationship of the applicant's qualification or qualifications to the ANZSCO definition of the occupation rather than rely on the applicant's own description of what the occupation entails, or the applicant's own view of the proximity of the qualifications to the nominated occupation.[6] [6] Chawdhury v MIAC [2010] FMCA 275. Where more than one qualification is being used to satisfy the study requirement, all the courses must be closely related to the nominated skilled occupation. This requires a comparison between each qualification and the skilled occupation.[7] [7] Manik v MIAC [2012] FMCA 149 at [23] to [24], upheld on appeal in Manik v MIAC [2012] FCA 619. It is ultimately a matter for the Tribunal to decide whether the applicant's Australian qualifications are 'closely related' to the nominated skilled occupation and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated skilled occupation.[8] The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation or some part of it. [9][8] Talha v MIAC [2015] FCAFC 115 at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 at [26].[9] Constantino v MIBP [2013] FCA 1301 at [27].Is each qualification closely related to the applicant’s nominated skilled occupation?

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.Denise ConnollyMember

Ratio Decidendi

Legal Principle Established

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