Gondara (Migration) - [2020] AATA 4599

Gondara (Migration) [2020] AATA 4599 (6 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jagdeep Singh Gondara
CASE NUMBER:  1912913
HOME AFFAIRS REFERENCE(S):          BCC2019/1149679
MEMBER:Warren Stooke AM
DATE:6 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 06 October 2020 at 4:59pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Painting Trades Worker – ANZSCO 332211 – Diploma of Building and Construction was not seen as related to his previous course – units from his Certificate III related to painting – course completed with registered provider – two courses undertaken at least 16 calendar months from 29 August 2016 to 9 February 2019 – qualifications gained result of at least 2 academic years at Australian Institution – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15F; Schedule 2, cls 485.221, 485.222
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 7 May 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 7 March 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 29 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 his Diploma of Building and Construction was not seen as related to his previous course and that his application was refused due to irrelevancy.
For the following reasons, the Tribunal has concluded that the matter…

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: Gondara (Migration) [2020] AATA 4599
Case: [2020] AATA 4599
Decision Date: 6 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant's eligibility for this visa depended on meeting specific criteria related to their Australian study and the relevance of their qualifications to their nominated skilled occupation. The Tribunal was tasked with determining whether the applicant satisfied these requirements.

The primary legal issues before the Tribunal were whether the applicant met the 'Australian study requirement' within the six months preceding their visa application, as stipulated by clause 485.221 of Schedule 2 to the Regulations, and whether each qualification used to satisfy this requirement was closely related to the applicant's nominated skilled occupation, as required by clause 485.222. The applicant had completed a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Building) at Australian institutions.

The Tribunal reasoned that the applicant's Certificate III in Painting and Decorating, completed between August 2016 and November 2017, and the Diploma of Building and Construction (Building), completed between November 2017 and February 2019, satisfied the Australian study requirement. The Tribunal found that the two courses were undertaken over at least 16 calendar months, and the qualifications gained resulted from at least two academic years of study at an Australian institution. Furthermore, the Tribunal accepted the applicant's submission that the units from both courses, particularly those related to painting, Occupational Health and Safety, and the application of Australian standards, demonstrated a close relationship to the occupation of a Painting Trades Worker (ANZSCO 332211).

Consequently, the Tribunal concluded that the applicant met the requirements of clauses 485.221 and 485.222. The matter was remitted to the Minister for reconsideration of the remaining criteria for the Subclass 485 visa.

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 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 applicant stated that he is currently working with Decon Painting and Son, as a sub-contractor and that he commenced work with this business 2 weeks ago. It was also stated, by the applicant, that he previously worked with Kinbybrer Painting from 10 March 2019 until June 2020. The applicant provided evidence that he holds an ABN: 59285237966 and that he is paid $30.00 per hour. The applicant stated that the units from his Certificate III matches with the Diploma course, where they are both related to the field of painting, including OHS and application of the Australian standards and that all units of the Diploma course are related to the occupation. The applicant was granted a Bridging Visa A on 7 March 2019, which is subject to condition 8501 to maintain health insurance. In this regard, the applicant submitted evidence of health insurance with BUPA that was commenced on 7 March 2019. The applicant provided evidence that he undertook a Pearson English language test on 17 November 2018 and achieved a score of 52 overall. The applicant provided evidence that he was provided with a successful skills assessment by Trades Recognition Australia on 15 November 2018. The applicant provided evidence of the following completed courses of study under Australian qualifications:oCertificate III in Painting and Decorating from 29 August 2016 to 17 November 2017;oDiploma of Building and Construction (Building) from 20 November 2017 to 9 February 2019. The applicant provided the Tribunal with a transcript for the Diploma of Building and Construction (Building) course, that included the following subjects of study:·BSBOHS504B Apply principles of OHS risk management·BSBPMG505A Manage Project quality·BSBPMG508A Manage Risk·CPCCBC4001A Apply building codes and standards to the construction process for low rise building projects·CPCCBC4003A Select and prepare a construction contract·CPCCBC4004A Identify and produce estimated costs for building and construction projects·CPCCBC4010B Apply structural principles to residential low rise constructions·CPCCBC4013A Prepare and evaluate tender documentation·CPCCBC5001B Apply building codes and standards to the construction process for medium rise building projects·CPCCBC5002A Monitor costing systems on medium rise building and construction projects·CPCCBC5003A Supervise the planning of on-site medium rise building or construction work·CPCCBC5006B Apply site surveys and set-out procedures to medium rise building projects·CPCCBC5007B Administer the legal obligations of a building or contraction contractor·CPCCBC5009A Identify services layout and connection methods to medium rise construction projects·CPCCBC5010B Manage construction work·CPCCBC5011A Manage environmental management practices and processes in building and construction·CPCCBC5012A Manage the application and monitoring of energy conservation and management practices and processes·CPCCBC5018A Apply structural principles to the construction of medium rise buildingsDoes the applicant meet the Australian study requirement?

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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