Paluykov (Migration) - [2021] AATA 5379

Paluykov (Migration) [2021] AATA 5379 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tsanko Petkov Paluykov
CASE NUMBER:  1913266
HOME AFFAIRS REFERENCE(S):          BCC2019/1174249
MEMBER:Wan Shum
DATE:8 November 2021
PLACE OF DECISION:  Sydney
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 485.222 of Schedule 2 to the Regulations.

Statement made on 08 November 2021 at 11:16am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – Advanced Diploma of Leadership and Management – whether qualification ‘closely related’ to nominated occupation – Agricultural Scientist – ANZSCO description of the occupation – Unit Group 2341 – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.222
CASES
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 8 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 8 March 2019. 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 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 delegate was of the view that the Advanced Diploma of Leadership and Management is not closely related to his nominated occupation of Agricultural Scientist (ANZSCO Code: 321211).
The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.
The applicant appeared before the Tribunal on 8 September 2021 by videoconference using MS Teams to give evidence and present arguments. The representative was also present by videoconference.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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…

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: Paluykov (Migration) [2021] AATA 5379
Case: [2021] AATA 5379
Decision Date: 8 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by Mr. Paluykov concerning his application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream. The central dispute revolved around whether the applicant's Australian qualifications were "closely related" to his nominated occupation of Agricultural Scientist, a requirement for satisfying the visa criteria.

The Tribunal was tasked with determining if the applicant's Advanced Diploma of Leadership and Management qualification met the criteria under clause 485.222 of Schedule 2 to the Migration Regulations 1994, which mandates that each qualification used to satisfy the Australian study requirement must be closely related to the applicant's nominated skilled occupation. The applicant had nominated Agricultural Scientist (ANZSCO Code: 321211) and presented several qualifications, including a Diploma and an Advanced Diploma of Leadership and Management.

The Tribunal's reasoning focused on the relationship between the applicant's qualifications and his nominated occupation. While the applicant argued his studies were closely related, the Tribunal noted inconsistencies in the provided documentation regarding the dates of his Diploma of Leadership and Management. Despite these discrepancies, the Tribunal found that the applicant had met the requirements of both clause 485.221 (satisfying the Australian study requirement) and clause 485.222 (qualification closely related to nominated occupation). Consequently, the Tribunal remitted the matter to the Minister for reconsideration of the remaining visa criteria.

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 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 the second of those requirements.Is the qualification ‘closely related’ to the nominated occupation? In this case, the applicant nominated the occupation of Agricultural Scientist (ANZSCO Code: 321211) which is a skilled occupation specified in IMMI 18/051. The applicant provided the following details of studies undertaken in Australia on the application form, being:·Diploma of Leadership and Management at Della International College from 28 August 2017 to 10 February 2019;·Certificate IV in Business Administration at Baxter College from 13 February 2016 to 22 May 2016; and·Diploma of Business at Baxter College from 13 September 2013 to 31 August 2015. The applicant also provided evidence that he was awarded an Advanced Diploma of Leadership and Management qualification from Della International College. According to the completion letter, the course dates were from 28 August 2017 to 10 February 2019. The representative submitted that the applicant was granted recognition of prior learning from the diploma studies and that all of his study was closely related to the nominated occupation. However, in this case, it appears to the Tribunal that it need only assess whether the Diploma and Advanced Diploma in Leadership and Management qualifications are closely related to the nominated skilled occupation because these two qualifications appear to meet the Australian study requirement as defined in reg 1.15F without needing to consider the other qualifications. The information before the Tribunal is that the applicant was enrolled in both the Diploma and the Advanced Diploma of Leadership and Management course at Della International College in Melbourne, Victoria. According to the applicant’s PRISMS records, there are two Confirmation of Enrolments (CoEs) for the Diploma of Leadership and Management issued in respect of the applicant. There are two copies of the statement of results for the Diploma of Leadership and Management (provided after the hearing) – one of which reflects the dates of the CoE which indicates that he commenced on 19 June 2017 and completed the course on 6 August 2017 while the other indicates that he commenced the course on 27 June 2016 and gave the date of completion as 25 June 2017. In response to a query from the Tribunal, the college advised that the applicant had suspended his enrolment in the Diploma of Leadership and Management before reaching the completion date, which is why there are two CoEs, with the first CoE having a start date of 27 June 2016 (CoE Code: 78142436). Then he suspended his course on 31 May 2017. He resumed his course on 19 June 2017 and completed his course on 6 August 2017 which is reflected in the updated CoE (CoE Code: 8E6F8812).

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cls 485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the 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 485.222 of Schedule 2 to the Regulations.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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