KIM (Migration) - [2018] AATA 126

KIM (Migration) [2018] AATA 126 (1 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Nari KIM
CASE NUMBER:  1705490
DIBP REFERENCE(S):  BCC2016/4407205
MEMBER:Stavros Georgiadis
DATE:1 February 2018
PLACE OF DECISION:  Adelaide
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; and
·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 01 February 2018 at 5:27pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Skilled Graduate) – Satisfied the ‘Australian study’ requirement – Skills requirements – Qualifications 'closely related' to the nominated occupation
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, 1.15I, 2.26AC(6), Schedule 2 cls 485.111, 485.221, 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Prasad v MIAC [2012] FCA 591
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
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 Immigration on 9 March 2017 to refuse to grant the applicant a Skilled (Provisional) Temporary Graduate (Class VC) (Graduate Work) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 30 December 2016. At the time the visa application was lodged, Class VC contained two subclasses, 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which 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 because he considered the applicant did not satisfy Schedule 2 to the Regulations as the applicant’s Diploma of Food Processing from TAFE SA was completed more than 6 months prior to lodging the visa and the delegate found the applicant therefore failed to meet the requirements of cl.485.221; and because the delegate considered the applicant’s Diploma in Leadership Management is not study ‘closely related’ to the applicant’s nominated skilled occupation of Chef (ANZSCO 351311) to meet the ‘Australian study’ requirement under cl.485.222.
The applicant appeared before the Tribunal on 1 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the primary criteria for a…

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: KIM (Migration) [2018] AATA 126
Case: [2018] AATA 126
Decision Date: 1 February 2018

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Skilled Graduate) stream, brought before the Tribunal. The applicant sought review of a decision concerning her eligibility for this visa.

The central legal issues before the Tribunal were whether the applicant satisfied the primary criteria for the visa, specifically cl. 485.221 and 485.222 of Schedule 2 to the Regulations. These clauses require that the applicant must have satisfied the 'Australian study' requirement in the six months immediately preceding the visa application, and that any qualifications used to meet this requirement must be closely related to the applicant's nominated skilled occupation.

The Tribunal considered the definition of the 'Australian study' requirement, which mandates completion of registered courses totalling at least 16 calendar months and at least two academic years of study, with all instruction in English, undertaken while holding a visa authorising study in Australia. The Tribunal found that the applicant's Diploma of Food Processing, registered for 52 weeks, did not alone satisfy the minimum requirement of 92 weeks of study for two academic years. Consequently, the Tribunal concluded that the applicant did not satisfy the 'Australian study' requirement as stipulated by cl. 485.221.

Given these findings, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the applicant was to be considered as meeting both cl. 485.221 and cl. 485.222 of Schedule 2 to the Regulations.

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 issue in the present case is whether the applicant satisfies 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). Does the applicant meet the ‘Australian study’ requirement? Under r.1.15F(1) of the Regulations, a person satisfies the 'Australian study’ requirement if the person satisfies the Minister (or this Tribunal on review) that the person has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:·that are registered courses; and·that were completed in a total of at least 16 calendar months; and ·that were completed as a result of a total of at least 2 academic years study; and·for which all instruction was conducted in English; and·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. 'Degree', 'diploma', 'trade qualification', 'registered course', 'completed' and 'academic year' are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). 'Completed', in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, '2 academic years' is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (ESOS Act). The applicant has provided evidence of completing a Diploma of Food Processing from TAFE SA (20 August 2012 to 5 July 2013) with her qualification parchment issued on 1 November 2013 and also a Diploma of Leadership and Management from Salford College (26 October 2015 to 22 November 2016) with her qualification parchment issued on 7 December 2016. She had earlier completed other (Certificate III and IV) courses of study commenced from Semester 1 in 2011, some units of which were given status recognition towards her Diploma of Food Processing. Based on evidence set out on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that the Diploma of Food Processing (Specialising in Baking - FDF50110) undertaken by the applicant is registered for 52 weeks and that all instruction was in English. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years study - that is, at least 92 weeks of study consistent with the relevant instrument IMMI 09/040, the Tribunal finds that relying on her Diploma of Food Processing course alone, the applicant would not satisfy the 'Australian study’ requirement in the 6 months immediately preceding the day her Subclass 485 visa application was made on 30 December 2016 as required by cl. 485.221 of Schedule 2 to the Regulations.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the grant of a Subclass 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 criteria for a Subclass 485 visa:·cl.485.221 of Schedule 2 to the Regulations; and·cl.485.222 of Schedule 2 to the Regulations.Stavros GeorgiadisMemberReferences and CitationsMIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301, Jacobson J at [33] quoting with approval Prasad v MIAC [2012] FCA 591, Logan J at [33].Uddin v MIAC [2010] FCA 1281, North J at [10] - [12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; and, MIBP v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56].Chawdhury v MIAC [2010] FMCA 275, Raphael FM at [12]. See also Kabir v MIAC [2010] FMCA 577, Scarlett FM at [70], Shafiuzzaman v MIAC [2011] FMCA 874, Nicholls FM at [48] – [67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term 'closely related' should be read as 'complementary' or 'useful' to the nominated occupation.Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].

Ratio Decidendi

Legal Principle Established

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