Jin (Migration) - [2020] AATA 5748

Jin (Migration) [2020] AATA 5748 (3 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Qimeng Jin
Mr Jinwei Cai
CASE NUMBER:  1903828
HOME AFFAIRS REFERENCE:               BCC2018/3591275
MEMBER:L. Symons
DATE:3 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 3 December 2020 at 4:30pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Accountant (General) – Australian study requirement – Master of Public Health – qualification ‘closely related’ to nominated occupation – ANZSCO descriptions – positive skills assessment issued by Chartered Accountants Australia and New Zealand – qualitative research skills – whether skills acquired from qualification directly transferable to nominated occupation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 31 January 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 21 September 2018. 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 visas because the first named applicant, Ms Jin, did not satisfy cl.485.222 of Schedule 2 to the Regulations because her Master of Public Health degree from the University of Sydney completed on 21 July 2018 used to satisfy the Australian study requirement was not closely related to her nominated skilled occupation of Accountant (General) (ANZSCO Code 221111).
On 19 February 2019, the applicants applied to the Tribunal for a review of the decision of the Department of Home Affairs (the Department). The Tribunal was provided with a copy of the Department’s Decision Record dated 31 January 2019.
Ms Jin appeared before the Tribunal on 17 August 2020 to give evidence and present arguments. She was assisted by an interpreter in the Mandarin and English languages. Mr Jinwei Cai did not attend the hearing. Ms Jin was represented in relation to the review by her registered migration agent, Mr Xuepeng Li, who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Ms Jin 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 Jin (Migration)

Details

AGLC: Jin (Migration) [2020] AATA 5748
Case: [2020] AATA 5748
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Jin, who sought to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. The central dispute concerned whether Ms Jin's educational qualifications were "closely related" to her nominated skilled occupation of Accountant (General) (ANZSCO 221111), as required by clause 485.222 of Schedule 2 to the Regulations.

The Tribunal was required to determine if each degree, diploma, or trade qualification relied upon by Ms Jin to meet the Australian study requirement was indeed closely related to the nominated occupation. This involved interpreting the meaning of "closely related" in the context of migration law, considering established case law that indicates the connection must be more than merely complementary but does not necessitate an exact correspondence. The Tribunal also had to assess whether the nominated occupation should be understood by reference to the entirety of its ANZSCO description, including higher groupings, and whether the assessment should focus objectively on the qualifications and the occupation rather than the applicant's subjective views.

In its reasoning, the Tribunal applied principles derived from various court decisions. It noted that the term "closely related" has been interpreted by the courts to require a substantial connection, not just a complementary one. The Tribunal emphasised that the assessment must focus on the nominated occupation as defined by ANZSCO, giving substantial weight to the official descriptions. Furthermore, the Tribunal considered that the relationship between the qualifications and the occupation should be objectively assessed, and where multiple qualifications are used, each must be closely related to the nominated occupation, not just to each other. The Tribunal concluded that the entire scope of the Australian studies must be compared with the entire scope of the nominated skilled occupation.

The Tribunal affirmed the decision not to grant Ms Jin the Skilled (Provisional) (Class VC) visa, finding that she did not meet the requirements of clause 485.222.

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 EVIDENCE AND FINDINGS Ms Jin 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. Clause 485.222 requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement is ‘closely related’ to Ms Jin’s nominated skilled occupation. She has nominated the skilled occupation of Accountant (General) (ANZSCO 221111). The issue in the present case is whether she meets this requirement. Relevant law 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 do not require an exact correspondence[1] but must be more than merely complementary.[2] [1] MIBP v Dhillon (2014) 227 FCR 525.[2] Uddin v MIAC [2010] FCA 1282. 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 Courts have held that the decision maker, in this case the Tribunal, is entitled to give substantial weight to the contents of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) descriptions.[3] [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. More recent authority suggests 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][4] Talha v MIAC [2015] FCAFC 115.[5] Ibid. It is also appropriate to objectively consider the relationship of the applicant's qualification or qualifications to the ANZSCO definition of the occupation rather than relying 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, not a comparison between the two or more qualifications.[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 decision-maker, in this case 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]Is each degree, diploma or trade qualification used by Ms Jin to satisfy the Australian study requirement closely related to her nominated skilled occupation?[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].

Decision

Reasons for decision

The Tribunal finds that Mr Jinwei Cai does not meet the requirements of cl.485.311.DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.L. SymonsMember

Ratio Decidendi

Legal Principle Established

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