Kuai (Migration) - [2021] AATA 3449

Kuai (Migration) [2021] AATA 3449 (30 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Zeming Kuai
Ms Yi-Syuan Chen
CASE NUMBER:  1821510
HOME AFFAIRS REFERENCE(S):          BCC2018/3760977
MEMBER:Ian Berry
DATE:30 August 2021
PLACE OF DECISION:  Brisbane
DECISION:In relation to the first named applicant, the Tribunal affirms the decision, not to grant the applicant’s Skilled (Provisional) (Class VC) visa.
In relation to the second named applicant, the Tribunal has no jurisdiction concerning her Skilled (Provisional) (Class VC) visa.

Statement made on 30 August 2021 at 10:59am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Locksmith – Australian study requirement – two academic years of relevant study – courses completed within 6 months before visa application – courses closely related to skilled occupation – relationship between management skills and locksmith occupation – course competencies unrelated to occupation – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; rr 1.03, 1.15
CASES
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 13 July 2018 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 13 June 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 (Cth) (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 applicant’s Diploma of Leadership and Management is not closely related to his nominated occupation of Locksmith ANZSCO 323313.
Withdrawal of the 2^nd named applicant
On 18 December 2020, the second named applicant confirmed that she was an applicant with the first named applicant. She advised the tribunal that she is no longer with the first named applicant and requested she withdraw from the case presently under review. As expected, the Tribunal requested identification and then received and accepted the second named applicant’s Withdrawal of Application dated 17 December 2020. The second named applicant no longer is involved in this proceeding. For the reasons given, the Tribunal does not have jurisdiction in relation to the second named applicant.
The applicant appeared before the Tribunal on 29 April 2021, to give evidence and present arguments. The Tribunal exercised…

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: Kuai (Migration) [2021] AATA 3449
Case: [2021] AATA 3449
Decision Date: 30 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) in the Graduate Work stream. The dispute centred on whether the applicant met the primary criteria for this visa, specifically concerning the Australian study requirement and the relationship between their completed courses and their nominated skilled occupation.

The Tribunal was required to determine two key legal issues. Firstly, whether the applicant had satisfied the Australian study requirement within the six months immediately preceding their visa application, as stipulated by clause 485.221 of Schedule 2 to the Regulations. Secondly, the Tribunal had to ascertain whether each degree, diploma, or trade qualification relied upon to meet the Australian study requirement was closely related to the applicant's nominated skilled occupation, as required by clause 485.222.

In its reasoning, the Tribunal found that the applicant met the requirements of clause 485.221, having completed registered courses in Australia over a period exceeding 16 months, involving at least two academic years of study, with all instruction in English, while holding a visa authorising study. However, the Tribunal determined that the applicant failed to satisfy clause 485.222. The competencies gained from the applicant's courses were found to be unrelated to the nominated occupation of Locksmith, and there was no discernible connection between the management skills acquired and the requirements of that trade.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa. The Tribunal noted it had no jurisdiction concerning the second applicant's 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 cl.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 before 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 is whether the applicant meets those requirements.Does the applicant meet the Australian study requirement within the 6-month period? Under r.1.15F(1) of the Regulations a person satisfies the Australian study requirement if the person satisfies the Minister 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 two 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 r.1.03, r.1.15F and r.2.26AC(6), and cl.485.111). Completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for the award (r.1.15F(2)). For the purposes of this case, one academic year is at least a total of 46 weeks, being the duration of a course registered under Education Services for Overseas Students Act 2000 (LIN 19/051). The applicant’s qualification history, institution, duration of his courses and academic weeks are as follows: The applicant arrived in Australia in July 2011 and was the holder of a student visa through throughout the period he undertook his studies. The Tribunal is satisfied that the courses are registered courses and were undertaken in a period greater than 16 months, achieved more than 2 academic years of study and were all taught in English.. The Tribunal is satisfied and finds that the applicant satisfies cl.485.221.Is the applicant’s nominated qualification closely related to the nominated occupation? In addition, cl.485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation. An occupation is a skilled occupation if: it is specified by the Minister as a skilled occupation; and if a number of points are specified in the instrument as being available – for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (r.1.03 and r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 18/051.

Decision

Reasons for decision

It follows that 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 In relation to the first named applicant, the Tribunal affirms the decision, not to grant the applicant’s Skilled (Provisional) (Class VC) visa. In relation to the second named applicant, the Tribunal has no jurisdiction concerning her Skilled (Provisional) (Class VC) visa.Ian BerryMember

Ratio Decidendi

Legal Principle Established

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