Purba (Migration) - [2020] AATA 5742

Purba (Migration) [2020] AATA 5742 (7 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhwinder Singh Purba
CASE NUMBER:  1826011
HOME AFFAIRS REFERENCE(S):          BCC2018/3978864
MEMBER:Warren Stooke AM
DATE:7 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 07 December 2020 at 7:08pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Carpenter – Australian study requirement – Advanced Diploma of Building and Construction (Management) – qualification ‘closely related’ to nominated occupation – ANZSCO descriptions – content of course more closely aligned with the skills of a manager – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Talha v Minister for Immigration and Border Protection [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 27 August 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied their qualification used to satisfy the Australian Study requirement, an Advanced Diploma of Building and Construction (Management), is closely related to their nominated occupation of Carpenter 331212. The delegate stated: “They have not provided any evidence of how the skills and knowledge they obtained from studying the Advanced Diploma of Building and Construction (Management) qualification are directly transferable to the nominated occupation of Carpenter 331212”.
The applicant appeared before the Tribunal on 24 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant stated that he understood the application was refused because the Advanced Diploma of Building and Construction is not closely related to Carpentry.
The applicant confirmed to the Tribunal that he provided a copy of the delegate’s decision to the Tribunal with his application for review.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons,…

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 Purba (Migration)

Details

AGLC: Purba (Migration) [2020] AATA 5742
Case: [2020] AATA 5742
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr Purba for a Subclass 485 visa in the Graduate Work stream. The applicant sought to satisfy the primary criteria for this visa, which require the applicant to have met the 'Australian study requirement' in the six months immediately preceding the visa application, and for each qualification used to meet this requirement to be closely related to the applicant's nominated skilled occupation. The central issue before the Tribunal was whether Mr Purba met these specific requirements.

The Tribunal was required to determine if Mr Purba's completed courses of study, namely an Advanced Diploma of Building and Construction (Management), a Certificate IV in Building and Construction (Building), and a Certificate III in Carpentry, satisfied the 'Australian study requirement' and if these qualifications were closely related to his nominated skilled occupation. The applicant provided evidence of his studies and his current employment as a truck driver.

The Tribunal found that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 in the present case is whether the applicant meets those requirements. The applicant provided evidence that he arrived in Australia in 2014 to undertake studies. The applicant provided evidence that he thought he was granted a Bridging visa on 28 June 2018, which has condition 8501 that requires the applicant to maintain health insurance and the applicant confirmed to the Tribunal that he maintains health insurance with Bupa. The applicant provided evidence that he undertook an English language test with PTE and secured a score of 50. The applicant provided the Tribunal with evidence concerning the completion of the following courses of study:·Advanced Diploma of Building and Construction (Management) from Australian Industrial Systems Institute was completed from 28 August 2017 to 19 May 2018. (CRICOS Code: 086295B)·A Certificate IV in Building and Construction (Building) from Australian Industrial Systems Institute, was completed from 2 August 2016 to 1 September 2016. (CRICOS Code: 081209A);·Certificate III in Carpentry from the Holmesglen Institute was completed on 28 September 2015. The applicant provided evidence that he is currently working as a truck driver transporting the goods of Australian Paper on a wage of $29.50 per hour. The applicant provided evidence that the Certificate IV in Building and Construction (Building) included the following subjects:·CPCCBC4001A Apply building codes and standards to the construction process for low rise building projects·CPCCBC4002A Manage occupational health and safety in the building and construction workplace·CPCCBC4003 A Select and Prepare A Construction Contract·CPCCBC4004A Identify and Produce Estimated Costs For Building And Construction Projects·CPCCBC4005A Produce labour and material schedules for ordering·CPCCBC4006B Select, procure and store construction materials for low rise projects·CPCCBC4007A Plan building and construction work·CPCCBC4008B Conduct on-site supervision of building and construction projects·CPCCBC4009B Apply legal requirements to building and construction projects·CPCCBC4010B Apply structural principles to residential low rise constructions·CPCCBC4011B Apply structural principles to commercial low rise constructions·CPCCBC4012A Read and interpret plans and specifications·BSBSMB8406A Manage small business finances·CPCCOHS1001A Work safely in the construction industry·BSBSMB8404A Manage small business planning·BSBSMB8402A Plan small business finances

Decision

Reasons for decision

On the basis of 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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.