Mushtaq (Migration) - [2022] AATA 3290

Mushtaq (Migration) [2022] AATA 3290 (17 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Farhan Mushtaq
REPRESENTATIVE:  Mr Imran Ali (MARN: 0959879)
CASE NUMBER:  1913010
HOME AFFAIRS REFERENCE(S):          BCC2019/1098257
MEMBER:Jade Murphy
DATE:17 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 17 August 2022 at 4:46pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Accountant – Australian study requirement – courses completed within 6 months before visa application – courses closely related to skilled occupation – Leadership and Management studies – course not transferable to the applicant’s nominated occupation – broader employment and future career aspirations – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; rr 1.03, 1.15
CASES
Pasula v MIAC [2010] FMCA 219
Talha v MIBP [2015] FCAFC 115
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 9 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 March 2019. 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 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 to satisfy the Australian study requirement, namely an Advanced Diploma of Leadership and Management, is closely related to the nominated occupation of Accountant (ANZSCO 221111).
The applicant appeared before the Tribunal on 16 August 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
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…

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: Mushtaq (Migration) [2022] AATA 3290
Case: [2022] AATA 3290
Decision Date: 17 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Mushtaq, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, in the Graduate Work stream. The dispute centred on whether Mr Mushtaq met the primary criteria for this visa, specifically the Australian study requirement and the requirement that his completed courses be closely related to his nominated skilled occupation.

The Tribunal was required to determine two key legal issues. Firstly, whether Mr Mushtaq satisfied the ‘Australian study requirement’ as defined in regulation 1.15F(1) of the Migration Regulations 1994, which mandates the completion of registered courses totalling at least 16 calendar months and two academic years of study, undertaken in Australia while holding a study-authorised visa. Secondly, the Tribunal had to assess whether each degree, diploma, or trade qualification relied upon to satisfy the Australian study requirement was closely related to Mr Mushtaq’s nominated skilled occupation, as stipulated by clause 485.222.

The Tribunal found that Mr Mushtaq had completed an Advanced Diploma of Leadership and Management and a Master of Business Administration and a Master of Professional Accounting. These qualifications were completed within six months prior to his visa application and were registered courses, thus satisfying the Australian study requirement under clause 485.221. However, the Tribunal determined that the Advanced Diploma of Leadership and Management was not closely related to his nominated occupation of Accountant. The Tribunal reasoned that while the Master of Business Administration and Master of Professional Accounting were relevant, the inclusion of the leadership and management qualification, which was not transferable to accounting, meant that not all qualifications met the close relation requirement under clause 485.222. The Tribunal concluded that Mr Mushtaq did not satisfy the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant Mr Mushtaq 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 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 in the present case is whether the applicant meets those requirements.Does the applicant meet the Australian study requirement? Under reg 1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 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 regs 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 (reg 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 the Education Services for Overseas Students Act 2000. As evidenced by the applicant’s certificates of completion submitted to the Tribunal on review, the Tribunal is satisfied that the applicant has completed the following qualifications:·Advanced Diploma of Leadership and Management, at Malvern International College, completed 13 February 2019; and·Master of Business Administration and a Master of Professional Accounting, at Holmes Institute, completed 13 March 2017. Clause 485.221 requires the qualifications to be relied on to satisfy the Australian study requirement be completed within 6 months immediately before the day the application is made. Together, both courses were completed within 6 months immediately before the day the application was made as the applicant’s Advanced Diploma of Program Management was completed on 13 February 2019 and the applicant applied for this visa on 5 March 2019. Both qualifications further satisfy the Australian study requirement as they are registered courses completed at CRICOS registered institutions.

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 applicant a Skilled (Provisional) (Class VC) visa.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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