Pasikanti (Migration) - [2020] AATA 6082

Pasikanti (Migration) [2020] AATA 6082 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shashank Pasikanti
CASE NUMBER:  1821119
HOME AFFAIRS REFERENCE(S):          BCC2018/3949523
MEMBER:Ian Berry
DATE:22 December 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 22 December 2020 at 10:54am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Graduate Work stream – Australian study requirement met – qualification was not closely related to the nominated occupation –decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03 Schedule 2, cls 485.221, 485.222
Education Services for Overseas Students Act 2000
CASES
MIBP v Dhillon (2014) 227 FCR 525
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
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 2 July 2018 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 26 June 2018. 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 visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the applicant’s nominated occupation was Computer Network and Systems Engineer (ANZSCO 263111), was not closely related to the qualifications Diploma of Leadership and Management or the Advanced Diploma of Leadership and Management (collectively called the diplomas).
The applicant appeared before the Tribunal on 9 June 2020 and 12 October 2020 to give evidence and present arguments. The Tribunal received oral evidence only from the applicant. The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.
The applicant was represented in relation to the review by his registered migration agent Mr J.R. Vadlakonda MARN 0957482. The representative by phone attended the Tribunal hearing.
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 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6…

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: Pasikanti (Migration) [2020] AATA 6082
Case: [2020] AATA 6082
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Pasikanti, an applicant for a Subclass 485 visa in the Graduate Work stream. The dispute centred on whether Mr Pasikanti met the primary criteria for this visa, specifically the 'Australian study requirement' and the requirement that his qualifications be closely related to his nominated skilled occupation.

The Tribunal was required to determine if Mr Pasikanti had satisfied the 'Australian study requirement' as defined by regulation 1.15F(1) of the Migration Regulations 1994. This involved assessing whether he had completed one or more registered degrees, diplomas, or trade qualifications, undertaken while in Australia on a study-authorised visa, over a minimum of 16 calendar months and at least two academic years of study, with all instruction conducted in English. The Tribunal also had to consider whether each qualification used to satisfy this requirement was closely related to his nominated skilled occupation, as stipulated by clause 485.222.

The Tribunal found that Mr Pasikanti had completed a Master of Computing Technology, a Diploma of Leadership and Management, and an Advanced Diploma of Leadership and Management. It was satisfied that these courses were registered, completed in a total of at least 16 calendar months, involved at least 92 academic weeks of study, were conducted in English, and that he held a student visa during his studies. However, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa, and therefore affirmed the decision not to grant the 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 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 is whether the applicant meets those requirements.Are the elements of the Australian study requirement? 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 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 rr.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 (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 the Education Services for Overseas Students Act 2000 (IMMI 09/040). The applicant’s study consisted of the following qualifications: -a.Master of Computing Technology degree (by coursework) (Masters degree), at the University of Southern Queensland from 23 June 2013 to completion on 25 November 2015. Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) a duration of 104 academic weeks.b.Diploma of Leadership and Management (Diploma), at Queensland international Institute, from 20 March 2016 and completed on 9 January 2017. CRICOS duration of 46 academic weeks.c.Advanced Diploma of Leadership and Management (Advanced Diploma), at the Queensland International Institute, from 16 January 2017 and completed on 3 May 2018. CRICOS duration of 52 academic weeks. The applicant completed the Advanced Diploma on 3 May 2018 within the 6 months ending the day before the lodgement of his visa application (13 March 2018). The Tribunal is satisfied that:a.The courses completed by the applicant are registered courses.b.The courses were completed in a total of at least 16 Calendar months (25 November 2015 to 3 May 2018).c.As a result of at least 92 academic weeks of study.d.The courses were conducted in English.e.He held a student visa while studying, authorising the applicant to study.

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.Ian BerryMember

Ratio Decidendi

Legal Principle Established

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