Patel (Migration) - [2021] AATA 5377

Patel (Migration) [2021] AATA 5377 (23 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Prexabahen Kantibhai Patel
CASE NUMBER:  1821050
HOME AFFAIRS REFERENCE(S):          BCC2018/3981477
MEMBER:Ian Berry
DATE:23 November 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 23 November 2021 at 1:14pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – Diploma of Leadership and Management – whether qualification ‘closely related’ to nominated occupation – Internal Auditor – ANZSCO description of the occupation – Major Group 2 – Sub-Major Group 22 – Minor Group Level 221 – Unit Group Level 2212 – decision under review affirmed
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 4 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 28 June 2018. 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 (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.
Delegates decision
The delegate refused to grant the visa application because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations. Clause 485.221 provides that the applicant must complete the Australian study requirement within 6 months immediately before the day of lodgement of the applicant’s application. The applicant’s qualification of the Diploma of Leadership and Management was the only qualification made within that 6-month period. The delegate then found that the Diploma of Leadership and Management was not closely related to the nominated occupation of Internal Auditor. Therefore, clause 485.222 was not satisfied.
The applicant appeared before the Tribunal on 30 June 2021 to give evidence and present arguments. The Tribunal received oral evidence from the applicant who was the only witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages. Initially, the Tribunal was prepared for the interpreter only to be used when required by the applicant. Notwithstanding, the Tribunal made an opening statement of the Tribunal’s role and procedures of the hearing, all of which was interpreted. During the course of the hearing, as the Tribunal was of the view the applicant may…

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: Patel (Migration) [2021] AATA 5377
Case: [2021] AATA 5377
Decision Date: 23 November 2021

CaseChat Overview and Summary

This matter concerned an application for a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream by the applicant, Ms. Patel. The dispute arose when the delegate refused to grant the visa, finding that the applicant had not satisfied the primary criteria, specifically cl.485.222 of Schedule 2 to the Migration Regulations 1994. The applicant sought review of this decision before the Tribunal.

The Tribunal was required to determine two key issues: first, whether the applicant satisfied the ‘Australian study requirement’ as defined in cl.485.221 of the Regulations, and second, whether each qualification used to satisfy this requirement was ‘closely related’ to the applicant’s nominated occupation of Internal Auditor, as mandated by cl.485.222. The applicant had completed a Master of Commerce (Professional Accounting), an Advanced Diploma of Management (Human Resources), and a Diploma of Leadership and Management.

The Tribunal found that the applicant had satisfied the Australian study requirement, having completed registered courses in Australia, with all instruction in English, while holding a visa authorising study. The Master of Commerce and Advanced Diploma of Management met the duration and academic year requirements. Crucially, the Diploma of Leadership and Management was completed within the six months immediately preceding the visa application. However, the Tribunal affirmed the delegate's decision, concluding that the Diploma of Leadership and Management was not closely related to the nominated occupation of Internal Auditor, as assessed against the ANZSCO description of that occupation. Therefore, cl.485.222 was not satisfied.

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 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 one 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 (LIN 19/085). The applicant has achieved the following qualifications:·Master of Commerce (Professional Accounting) (Masters degree) was completed between 21 July 2014 and 21 July 2016.·Advanced Diploma of Management (Human Resources) (Advanced Diploma) was completed between 7 March 2016 and 5 March 2017.·Diploma of Leadership and Management (Diploma) was completed between 21 August 2017 and 13 May 2018. The Masters qualification consisted of 104 academic weeks of study. The Advanced Diploma consisted of 52 academic weeks of study. The applicant completed her Diploma qualification, which consisted of 38 academic weeks. The above qualifications were CRICOS[1] registered courses. [1] an acronym for Commonwealth Register of Institutions and Courses for Overseas Students. For all the qualifications, the applicant was the holder of a visa allowing her to study in Australia and all the qualifications were in English. The Diploma was completed within six months before the applicant applied for the VC-485 visa. TheTribunal finds that the applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application.

Decision

Reasons for decision

The applicant applied for the visa on 28 June 2018. 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 (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.Delegates decision The delegate refused to grant the visa application because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations. Clause 485.221 provides that the applicant must complete the Australian study requirement within 6 months immediately before the day of lodgement of the applicant’s application. The applicant’s qualification of the Diploma of Leadership and Management was the only qualification made within that 6-month period. The delegate then found that the Diploma of Leadership and Management was not closely related to the nominated occupation of Internal Auditor. Therefore, clause 485.222 was not satisfied. The applicant appeared before the Tribunal on 30 June 2021 to give evidence and present arguments. The Tribunal received oral evidence from the applicant who was the only witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages. Initially, the Tribunal was prepared for the interpreter only to be used when required by the applicant. Notwithstanding, the Tribunal made an opening statement of the Tribunal’s role and procedures of the hearing, all of which was interpreted. During the course of the hearing, as the Tribunal was of the view the applicant may not have been understanding the Tribunal’s questions, the Tribunal reverted to the interpreter interpreting all the questions and answers. 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 her registered migration agent Mr J Yao migration agent registration number 0743862. 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?

Ratio Decidendi

Legal Principle Established

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