Fumagalli (Migration) - [2021] AATA 739

Fumagalli (Migration) [2021] AATA 739 (17 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Davide Fumagalli
CASE NUMBER:  1928378
HOME AFFAIRS REFERENCE(S):          BCC2019/3491636
MEMBER:Michelle East
DATE:17 March 2021
PLACE OF DECISION:  Perth
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 17 March 2021 at 3:46pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification closely related to nominated occupation – business management tasks carried out by sole trader/subcontractor skilled tradesman – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 1.15F(1), Schedule 2, cls 485.221, 485.222
CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
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 Home Affairs on 24 September 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 12 July 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 because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualification of a Certificate IV in Business was closely related to his nominated occupation of Carpenter (ANZSCO 331212).
The applicant was represented in relation to the review by his registered migration agent.
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 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 those requirements.
Does the applicant meet the Australian study requirement?
Under…

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.

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Details

AGLC: Fumagalli (Migration) [2021] AATA 739
Case: [2021] AATA 739
Decision Date: 17 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr. Fumagalli for a Subclass 485 (Temporary Graduate) visa. The dispute centred on whether Mr. Fumagalli met the primary criteria for this visa, specifically the Australian study requirement and the requirement that his qualification be closely related to his nominated occupation.

The Tribunal was tasked with determining if Mr. Fumagalli satisfied the Australian study requirement under clause 485.221 of Schedule 2 to the Regulations, which mandates completion of at least two academic years of study within the six months preceding the visa application. Additionally, the Tribunal had to assess whether his qualification was closely related to his nominated skilled occupation, as required by clause 485.222.

The Tribunal found that Mr. Fumagalli had completed a Certificate III in Carpentry (104 weeks) and a Certificate IV in Business (30 weeks). While the Certificate III in Carpentry met the duration requirements for an academic year, the Tribunal was not satisfied that the Certificate IV in Business, on its own, would satisfy the overall two-academic-year study requirement. However, the Tribunal ultimately concluded that Mr. Fumagalli did meet the requirements of clauses 485.221 and 485.222.

Consequently, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa to the Minister for reconsideration, with the direction that Mr. Fumagalli had satisfied the Australian study requirement and the closely related qualification criteria.

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 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 those requirements.Does the applicant meet the Australian study requirement? Under r.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 rr.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 (r.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 registered under the Education Services for Overseas Students Act 2000. The applicant has provided evidence that he has completed a Certificate III in Carpentry from Everthought College of Construction on 25 June 2018 and a Certificate IV in Business from the Australian Institute of Language and Further Education on 20 June 2019. The applicant also provided a successful skills assessment for the occupation of Carpenter from Trades Recognition Australia (TRA). Based on the evidence provided on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that the duration of the Certificate III in Carpentry is 104 weeks. The Certificate IV in Business was a CRICOS registered course although it is no longer registered, as its registration was superseded after the applicant completed the course. It appears that the course was of 30 weeks duration and taught in English. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study, that is, at least 92 weeks consistent with the relevant instrument, the Tribunal is not satisfied that relying on his Certificate IV in Business alone would satisfy the ‘Australian study’ requirement in the 6 months immediately preceding the day he made his visa application.

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.Michelle EastMember

Ratio Decidendi

Legal Principle Established

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