Kim (Migration) - [2021] AATA 888

Kim (Migration) [2021] AATA 888 (19 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sunae Kim
Mr Jungsik Kim
CASE NUMBER:  1818484
HOME AFFAIRS REFERENCE(S):          BCC2018/1721609
MEMBER:Ian Berry
DATE:19 January 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 19 January 2021 at 3:30pm
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, r 1.15, Schedule 2, cls 485.221, 485.222
Education Services for Overseas Students Act 2000
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 MIBP [2015] 235 FCR 100
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 6 June 2018 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 18 April 2018. Visa Class VC contains Subclass 485. 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 (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the Diploma in Business (the Diploma) was not closely related to the applicant’s nominated occupation of Chef ANZSCO code 351311.
The applicant appeared before the Tribunal on 19 November 2020. The applicant did not attend the second day of the hearing on 4 December 2020. For reasons set out in this decision, the Tribunal decided to proceed with the hearing. The Tribunal exercised its discretion to hold the hearings by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.
The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review by their registered migration agent Mr N Joo MARN[1] 1173091 of Cornerstone Migration, who appeared by telephone with the applicant at the first hearing. At the second hearing, for reasons detailed in this decision, the applicant did not to attend. The representative did attend.
[1] Migration Agent Registration Number
The applicant was asked as to whether she understood the reason for the delegate’s decision. She confirmed she…

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 Kim (Migration)

Details

AGLC: Kim (Migration) [2021] AATA 888
Case: [2021] AATA 888
Decision Date: 19 January 2021

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, before the Administrative Appeals Tribunal. The applicant, a citizen of South Korea, sought to satisfy the primary criteria for the visa, specifically the Graduate Work stream. The core of the dispute revolved around whether the applicant met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Regulations.

The Tribunal was required to determine two key legal issues: firstly, whether the applicant had satisfied the ‘Australian study requirement’ in the six months immediately preceding the visa application, and secondly, whether each degree, diploma, or trade qualification used to satisfy this requirement was closely related to the applicant’s nominated skilled occupation. The applicant’s nominated occupation was Chef, and she had obtained qualifications in Australia.

The Tribunal found that while the applicant had met the Australian study requirement, the crucial issue was the relationship between her qualifications and her nominated occupation. The applicant’s evidence indicated she was employed as a section chef in a restaurant. However, the Tribunal concluded that her qualifications were not closely related to the occupation of Chef as required by clause 485.222. Consequently, the applicant did not satisfy the criteria for the grant of the 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.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 Korean citizen who entered Australia on 28 June 2011 after being granted a TZ-417 commonly known as a working visa. On 23 December 2013, the applicant was granted a Class TU Subclass 500 visa allowing her to study in Australia. That visa’s expiry date was 25 April 2018. She is married and employed as a chef in an inner-city Brisbane restaurant. Her evidence is that the restaurant in which he is presently employed has kitchen staff of about 15 employees including a head chef, 3 section chef’s and other assorted employees. Presently, the applicant is a section chef.The applicant’s medical condition On 16 July 2020, the Tribunal wrote to the applicant’s representative inviting the applicant to attend the Tribunal hearing set for 10 August 2020 at 10 am. The applicant responded, as she did with all communications with the Tribunal, through her representative, by an email of 31 July 2020. The representative was instructed to apply for an adjournment. The reasons for the adjournment were:(a) On 20 December 2018, the applicant was assaulted by several teenagers after she had finished work. The unprovoked assault consisted of the applicant being randomly kicked and punched in the head several times. She says that she suffered significant injury to her face and briefly lost consciousness.(b) Following the assault, the applicant was admitted to hospital. She developed Post traumatic stress disorder. The assault had been reported to the police.(c)The applicant suffered another injury in March 2020, which is not specified but led to an operation on her wrist. It was a work-related injury.(d)The representative, in order to prepare for the hearing, attempted to obtain instructions in order to prepare a written submission, without success.(e)The applicant’s representative states that the applicant relies on her ability to demonstrate that her latest qualification is closely related to the occupation of Chef, thus supporting the reason as to why the applicant ought to be at a hearing which should be adjourned.(f)the applicant has consulted the clinical psychologist and is taking daily medication which was not specified. Her current mental health care plan is due to be reviewed on 26 October 2020.

Decision

Reasons for decision

Based on 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 applicants Skilled (Provisional) (Class VC) visas.Ian BerryMember

Ratio Decidendi

Legal Principle Established

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