Kaur (Migration) - [2022] AATA 2988

Kaur (Migration) [2022] AATA 2988 (26 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Satnam Kaur
Mr Gurinderjit Singh
CASE NUMBER:  1922457
HOME AFFAIRS REFERENCE(S):          BCC2019/2946874
MEMBER:Warren Stooke AM
DATE:26 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion 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 26 July 2022 at 12:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – courses closely related to skilled occupation – occupation of Carpenter – Australian study requirement – studies in Building and Construction (Building) – courses completed within 6 months before visa application – continuity of study that supports the occupation – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222, 485.311; rr 1.03, 1.15
CASES
Bhanot v Minister for Immigration and Border Protection [2014] FCA 848
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015)
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 12 August 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 10 June 2019. Visa Class VC contains Subclass 485 (Temporary Graduate). 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 on the basis that the first named applicant (the applicant) did not satisfy cl 485.221 of Schedule 2 to the Regulations because the Certificate IV in Building and Construction (Building) was not considered as closely related to the nominated occupation of Carpenter – ANZSCO Code: 331212.
The applicants appeared before the Tribunal on 19 July 2022 to give evidence and present arguments.
The applicant stated that she had received and read the delegate’s decision concerning her visa application and provided a copy of the decision to the Tribunal with her application for review by the Tribunal.
The applicant stated that she understood her visa application was refused because her course of study was not closely related to her carpentry.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.221 requires the applicant to hold a qualification…

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 Kaur (Migration)

Details

AGLC: Kaur (Migration) [2022] AATA 2988
Case: [2022] AATA 2988
Decision Date: 26 July 2022

CaseChat Overview and Summary

The matter before the Tribunal concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by Ms Kaur. The core dispute revolved around whether Ms Kaur satisfied the requirements of clause 485.221 of Schedule 2 to the Migration Regulations 1994, specifically concerning the Australian study requirement and the completion of courses closely related to her nominated occupation of Carpenter.

The Tribunal was required to determine if Ms Kaur's studies in Certificate III in Carpentry and Certificate IV in Building and Construction (Building) met the criteria for the Australian study requirement, which mandates that relevant qualifications be obtained within the six months immediately preceding the visa application. A key aspect of this determination was whether the completed courses were sufficiently continuous and supportive of her nominated skilled occupation.

In reaching its conclusion, the Tribunal considered the evidence presented, including Ms Kaur's qualifications, her nominated occupation assessed by Trades Recognition Australia, and her current employment as a carpenter. The Tribunal found that Ms Kaur met the criteria under clause 485.221 and clause 485.222 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration with a direction that these criteria were satisfied.

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 Clause 485.221 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements. The applicant is a 39 year old from India, who was granted a Bridging Visa A on 10 June 2019 that became effective on 9 July 2019 upon the cessation of her Student Visa. The Bridging Visa contains condition 8501 to maintain health insurance. The applicant provided evidence that she has 2 children residing in India, a 13 year old daughter and 10 year old son, whom she visited in March-April 2022. The applicant provided evidence of health insurance with IMAN that commenced on 10 July 2019 at a cost of $226.23 per month. The applicant provided evidence of an AFP Police check that was confirmed as satisfying a non-disclosed criminal record dated 7 July 2019. The applicant provided evidence of undertaking an English language PTE test on 2 May 2019 with a score of 50. The applicant provided evidence from Trades Recognition Australia for the nominated occupation of Carpenter – ANZSCO Code: 331212, which was declared as successful on 7 August 2019. The applicant provided evidence of completion of the following courses of study:a.Certificate III in Carpentry undertaken at Della International College - CRICOS 091404D from 26 January 2017 to 22 February 2019. b.Certificate IV of Building and Construction (Building) undertaken at Australian Industrial Systems Institute - CRICOS 02838D from 9 July 2018 to 6 April 2019. The applicant provided evidence that she is currently working in the domestic building industry, as a carpenter, for Dream Homes in Adelaide and was employed in June with this company on a part-time basis of 20 hours per week. The applicant stated that she earns $29.00 per hour. The applicant provided evidence that the following modules were completed in the Certificate IV of Building and Construction (Building) course:a.Plan small business financesb.Undertake small business planningc.Manage small business financesd.Apply building codes and standards to the construction process for low rise building projectse.Manage work occupational health and safety in the building and construction workplacef.Select, prepare and administer a construction contractg.Identify and produce estimated costs for building and construction projectsh.Produce labour and material schedules for orderingi.Select, procure and store construction materials for building and construction projectsj.Plan building or construction workk.Conduct on-site supervision of building and construction projectsl.Apply legal requirements to building and construction projectsm.Apply structural principles to residential and commercial constructionsn.Apply structural principles to residential and commercial constructionso.Read and interpret plans and specificationsp.Prepare to work safely in the construction industry

Decision

Reasons for decision

Further, on the basis that the primary applicant has met the requirements for the grant of a 485 visa, it follows that the secondary applicant, as a member of the family unit of the primary applicant, has met cl.485.311 for the grant of a 485 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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