Lin (Migration) - [2019] AATA 2354

Lin (Migration) [2019] AATA 2354 (9 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Meiling Lin
CASE NUMBER:  1705840
HOME AFFAIRS REFERENCE(S):           BCC2016/4352150
MEMBER:Kira Raif
DATE:9 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa

Statement made on 09 May 2019 at 4:53pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Advanced Diploma of Business – registered nurse – studies not closely related to nominated occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.221, 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
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 and Border Protection on 8 March 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of China, born in November 1988. She applied for the visa on 23 December 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications used by the applicant to meet the Australian study requirement were closely related to her nominated occupation. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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 decision under review should be affirmed.
Relevant law
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 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.
Is the qualification ‘closely related’ to the nominated occupation?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated in her application that she complete the following study in Australia.
03/09 – 11/12             Bachelor of Nursing
02/13 – 07/13             Cert IV in Frontline Management
08/13 – 02/14             Diploma of…

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 Lin (Migration)

Details

AGLC: Lin (Migration) [2019] AATA 2354
Case: [2019] AATA 2354
Decision Date: 9 May 2019

CaseChat Overview and Summary

The applicant, Lin, sought review of a decision not to grant a Skilled (Provisional) (Class VC) visa, specifically under the Temporary Graduate visa subclass 485, Graduate Work stream. The dispute concerned whether Lin's qualifications and nominated occupation met the relevant visa criteria. The decision was made by Kira Raif, Senior Member of the Tribunal.

The primary legal issue before the Tribunal was whether Lin's completion of an Advanced Diploma of Business, and subsequent nomination as a registered nurse, satisfied the requirement that the applicant's nominated occupation be "closely related" to their Australian study. This involved an interpretation of the legislative instrument prescribing the criteria for the visa subclass.

The Tribunal's reasoning focused on the lack of a close relationship between the Advanced Diploma of Business and the nominated occupation of registered nurse. The Tribunal found that the applicant's studies were not sufficiently connected to the skills and knowledge required for the occupation of a registered nurse, and therefore, the applicant did not satisfy the criteria for the grant of the visa.

Consequently, 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

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Decision

Reasons for decision

On the basis of 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 applicant a Skilled (Provisional) (Class VC) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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