Mao (Migration) - [2021] AATA 5380

Mao (Migration) [2021] AATA 5380 (22 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kailong Mao
Ms Tianli Xu
CASE NUMBER:  1912049
HOME AFFAIRS REFERENCE(S):          BCC2019/1123691
MEMBER:Wan Shum
DATE:22 November 2021
PLACE OF DECISION:  Sydney
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 criteria for a Subclass 485 visa:
·cl 485.222 of Schedule 2 to the Regulations.

Statement made on 22 November 2021 at 10:21am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post Study Work stream – Civil Engineer – Master of Business Administration – whether qualification ‘closely related’ to nominated occupation – ANZSCO description of the occupation – Unit Group 2332 Civil Engineering Professionals – management of resources – overseeing and supervision of projects – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222
CASES
Constantino v MIBP [2013] FCA 1301
Talha v MIBP [2015] FCAFC 115
Tobon v MIBP [2014] FCCA 2208
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 May 2019 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 6 March 2019, and at that time, Visa Class VC only contained 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 visa, finding that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was of the view that the Master of Business Administration is not closely related to the applicant’s nominated occupation.
The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.
Prior to the hearing, the representative advised that the second named applicant was no longer “related” to the applicant and that her “visa application is no longer relevant for consideration in the AAT trial.” However, the Tribunal did not receive a withdrawal directly from the second named applicant, so this decision, where relevant, effectively applies to her.
The applicant appeared before the Tribunal on 27 August 2021 by videoconference using MS Teams to give evidence and present arguments. He confirmed that the second named applicant was not a member of his family unit any longer. The Tribunal indicated that as she had not personally withdrawn from the application for review that the decision would be in respect of her as well. The representative…

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 Mao (Migration)

Details

AGLC: Mao (Migration) [2021] AATA 5380
Case: [2021] AATA 5380
Decision Date: 22 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, under the Post Study Work stream. The applicant had nominated the occupation of Civil Engineer. The dispute centred on whether the applicant's Master of Business Administration qualification was "closely related" to the nominated occupation, a requirement for the Graduate Work stream.

The primary legal issue before the Tribunal was to determine if the applicant's Master of Business Administration qualification satisfied the criterion that the applicant's qualification must be "closely related" to the nominated skilled occupation of Civil Engineer, as stipulated by clause 485.222 of the relevant regulations. This required a comparison of the entirety of the applicant's Australian studies with the entirety of the ANZSCO description for the occupation of Civil Engineer.

The Tribunal reasoned that the assessment of whether a qualification is "closely related" to an occupation requires an objective comparison of the whole of the studies undertaken with the whole of the ANZSCO description of the occupation, rather than focusing on specific subjects or the applicant's personal views on the relationship. The Tribunal noted that the applicant had nominated Civil Engineer (ANZSCO Code: 233211), which involves planning, designing, organising, and overseeing construction and operation of civil engineering projects. The Tribunal found that the applicant's Master of Business Administration qualification did meet the requirements of clause 485.222.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the first named applicant meets the criteria under clause 485.222. The Tribunal also noted that the second applicant was no longer a member of the family unit.

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 applicant completed a Master of Business Administration at Charles Darwin University, and it is this qualification which he relies upon to satisfy the Australian study requirement. He commenced study on 27 February 2017 and the qualification was completed on 5 March 2019, which was the day before the application was made. The course was registered for 104 weeks. Therefore, the Australian study requirement was met within the 6 months immediately before the day on which the visa application was made. It would appear to the Tribunal that the applicant would have met the requirements for a Subclass 485 visa under the Post Study Work stream given the qualifications and educational institution are specified for the purposes of cl 485.321. For some reason the applicant has applied under the Graduate Work stream which requires that the qualification be ‘closely related’ to the nominated skilled occupation (cl 485.222). In this case, the applicant nominated the occupation of Civil Engineer (ANZSCO Code: 233211), which is a skilled occupation specified in the relevant instrument. In determining whether the applicant’s qualifications are ‘closely related’ to the nominated occupation, the Tribunal is to compare the whole of the Australian studies with the whole of the nominated occupation (Talha v MIBP [2015] FCAFC 115 at [53]). The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation, or some part of it: Constantino v MIBP [2013] FCA 1301 at [27]. In comparing the whole of the studies to the whole of the nominated occupation, the Tribunal is to objectively consider the relationship of the qualifications to the ANZSCO description of the occupation of Civil Engineer (ANZSCO Code: 233211) rather than relying on the applicant’s own description of what the occupation entails or how the qualifications help with their future plans to start their own business. According to ANZSCO,[1] a Civil Engineer “[p]lans, designs, organises and oversees the construction and operation of dams, bridges, pipelines, gas and water supply schemes, sewerage systems, airports and other civil engineering projects.”[1] The relevant version being the latest issue of the Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.3 released at 11:30 am (Canberra time) 05/11/2019 which was the version in force on the day LIN 19/051 commenced (being 16 November 2019). The occupation of Civil Engineer (ANZSCO Code: 233211) is grouped with other Civil Engineering Professionals in ANZSCO under the Unit Group 2332 Civil Engineering Professionals, of which there are five in total:233211 Civil Engineer233212 Geotechnical Engineer233213 Quantity Surveyor233214 Structural Engineer233215 Transport Engineer

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. Based on the evidence provided by the applicant, the second named applicant is no longer a member of his family unit.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 criteria for a Subclass 485 visa:·cl 485.222 of Schedule 2 to the Regulations.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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