Ihalawele Gedara (Migration) - [2020] AATA 5085

Ihalawele Gedara (Migration) [2020] AATA 5085 (28 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Srinath Sanjaya Kumarasinghe Ihalawele Gedara
CASE NUMBER:  1913454
HOME AFFAIRS REFERENCE(S):          BCC2019/1265407
MEMBER:Warren Stooke AM
DATE:28 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 28 August 2020 at 9:37am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Australian study requirement met – qualification was not closely related to the nominated occupation –decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 485.221, 485.222
Education Services for Overseas Students Act 2000
CASES
Tobon v Minister for Immigration & Anor (2014) FCCA 2208
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 20 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 13 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 courses of study prior to the application of the 485 visa were not closely related to the occupation of Motor Mechanic (General) - ANZSCO Code 321211.
The applicant appeared before the Tribunal on 19 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 20 May 2019 and that he understood the content of the decision. In this regard, the applicant stated that the decision referred to the Advanced Diploma of Leadership and Management and the Diploma of Leadership and Management is not related to his previous course.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed for the following reasons.
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…

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: Ihalawele Gedara (Migration) [2020] AATA 5085
Case: [2020] AATA 5085
Decision Date: 28 August 2020

CaseChat Overview and Summary

The applicant, Ihalawele Gedara, sought review of a decision to refuse a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream. The dispute centred on whether the applicant met the criteria for this visa, which included satisfying the Australian study requirement and ensuring that the qualifications used to meet this requirement were closely related to the applicant's nominated skilled occupation.

The Tribunal was required to determine if the applicant had satisfied the Australian study requirement within the six months preceding the visa application, as stipulated by clause 485.221 of Schedule 2 to the Regulations. Crucially, the Tribunal also had to assess whether each degree, diploma, or trade qualification relied upon by the applicant was closely related to their nominated skilled occupation, as mandated by clause 485.222.

The Tribunal found that while the applicant had completed a range of automotive and business-related qualifications, including a Diploma of Automotive Technology and an Advanced Diploma of Leadership and Management, these qualifications were not closely related to their nominated occupation. The applicant's employment duties at Desire Automotive Hallam involved suspension, servicing, and mechanical repairs, which the Tribunal considered to be inconsistent with the skills and knowledge gained from the leadership and management qualifications. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 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

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed for the following reasons.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 is a 35 year old from Sri Lanka, who provided evidence that he arrived in Australia in October 2008 and that he has completed the following courses of study:a.Certificate III in Automotive – Mechanical from 10/03/2010 to 30/03/2011;b.Diploma of Business from 01/04/2011 to 31/05/2011;c.Diploma of Management from 01/06/2011 to 30/07/2011;d.Certificate IV in Business from 01/09/2011 to 30/03/2012;e.Certificate III in Automotive - Electrical Tech from 01/04/2012 to 20/08/2012;f.Certificate IV of Automotive Technology from 26/09/2012 to 07/04/2013;g.Diploma of Automotive Technology from 14/04/2013 to 30/12/2013;h.Diploma of Leadership and Management from 05/02/2018 to 18/02/2018;i.Advanced Diploma of Leadership and Management from 15/01/2018 to 13/01/2019. The applicant provided the Department with transcripts for the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management, which included the following subjects:Diploma of Leadership and Management·Develop and use emotional intelligence;·Lead and manage effective workplace relationship;·Manage operational plan;·Lead and manage team effectiveness;·Manage meetings;·Manage an information or knowledge management system;·Develop a workplace learning environment;·Plan and manage the flexible workforce;·Undertake project work;·Manage risk;·Develop a sales plan;·Ensure a safe workplace.Advanced Diploma of Leadership and Management·Develop a marketing plan;·Manage finances;·Contribute to organisational development;·Manage knowledge and information;·Provide leadership across the organisation;·Plan and establish compliance management system;·Optimise customer engagement operations;·Define recordkeeping framework;·Lead and manage organisational change;·Develop and implement business plan;·Manage Human Resource strategic planning;·Manage customer engagement information. The applicant provided evidence that he is currently employed at Desire Automotive Hallam, where he has worked since July 2019. The applicant stated that he is employed full-time and is paid a weekly wage of $727.00 (after tax). The applicant provided evidence that his duties include, suspension, servicing work and mechanical repairs and that he also relieves the owner.

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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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