Rai (Migration) - [2020] AATA 2585

Rai (Migration) [2020] AATA 2585 (16 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Inderpreet Singh Rai
Mrs Rajvir Kaur
CASE NUMBER:  1724791
HOME AFFAIRS REFERENCE(S):          BCC2017/2688274
MEMBER:Jade Murphy
DATE:16 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 16 April 2020 at 12:15pm

CATCHWORDS
MIGRATION – Subclass 485 Skilled (Provisional) visa – Graduate Work stream – Australian study requirement not met – qualification was not closely related to the nominated occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, Schedule 2, cls 485.211, 485.222
Education Services for Overseas Students Act 2000
CASES
Pasula v MIAC [2010] FMCA 219

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 Immigration and Border Protection on 27 September 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 28 July 2017. 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 1 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 not satisfied that the applicant’s Diploma of Business used to satisfy the Australian Study Requirement is closely related to the applicant’s nominated occupation of Metal Fabricator (ANZSCO 322311).
The applicant appeared before the Tribunal on 9 April 2020 to give evidence and present arguments.
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 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.
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 1 or…

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

Case: [2020] AATA 2585
Decision Date: 16 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 485 Skilled (Provisional) visa in the Graduate Work stream. The dispute centred on whether the applicant met the primary criteria for this visa, specifically concerning the Australian study requirement and the relationship between their qualifications and nominated occupation.

The Tribunal was required to determine two key issues: firstly, whether the applicant satisfied the Australian study requirement as defined by the Migration Regulations, and secondly, whether each qualification used to satisfy this requirement was closely related to the applicant's nominated skilled occupation. The Australian study requirement mandates the completion of registered courses in Australia, totalling at least 16 calendar months and at least two academic years of study, with all instruction in English, undertaken while holding a study-authorised visa.

The Tribunal found that the applicant had completed a Certificate III in Engineering (Fabrication Trade), a Certificate IV in Engineering, and a Diploma of Business. These qualifications were completed within the six months preceding the visa application and were registered courses undertaken at CRICOS-registered institutions. They also met the duration requirements for 16 calendar months and two academic years of study. However, the Tribunal concluded that the applicant had not met the criterion that each qualification must be closely related to the nominated skilled occupation. Consequently, the Tribunal 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 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 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.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 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 of 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, 1 ‘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 set out in the delegate’s decision, and evidenced by academic transcript, the applicant completed the following qualifications:·Certificate III in Engineering (Fabrication Trade) at Baxter Institute – commenced 23 April 2015, completed 5 June 2016;·Certificate IV in Engineering at Baxter Institute – commenced 1 July 2016, completed 5 December 2016;·Diploma of Business at Acumen Education – commenced 14 February 2017, completed 22 July 2017. Together, the 3 courses were completed within the 6 months immediately before the day the application was made as the applicant’s Diploma of Business was completed on 22 July 2017 and the applicant applied for this visa on 28 July 2017. All 3 qualifications further satisfy the Australian Study Requirement as they are registered courses completed at a CRICOS registered institution (CRICOS codes 03090B and 02233M respectively). The qualifications together were completed in a total of at least 16 calendar months and as the result of at least 2 academic years of study.

Decision

Reasons for decision

As the first named applicant does not meet the criteria for the grant of a Subclass 485 visa, the second named applicant cannot meet the criteria in cl.485.311.DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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