Randhawa (Migration) - [2020] AATA 4054

Randhawa (Migration) [2020] AATA 4054 (7 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Parwinder Singh Randhawa
CASE NUMBER:  1816475
HOME AFFAIRS REFERENCE(S):          BCC2018/2083784
MEMBER:Kira Raif
DATE:7 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 07 September 2020 at 3:28pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – qualifications – Painting Trades Worker – Diploma of Building and Construction (Management) not related to occupation – focused more on management skills than technical skills – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.221-485.222
CASES
Talha v Minister for Immigration and Border Protection (2015) FCAFC 115
Tobon v Minister for Immigration (2014) FCCA 2208
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 5 June 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 was born in September 1996. He applied for the visa on 14 May 2018. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied the qualifications used to meet the Australian study requirement were closely related to the applicant’s nominated occupation. The applicant seeks review of the delegate’s decision.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal on 7 September 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
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 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…

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 Randhawa (Migration)

Details

AGLC: Randhawa (Migration) [2020] AATA 4054
Case: [2020] AATA 4054
Decision Date: 7 September 2020

CaseChat Overview and Summary

The applicant, Mr. Randhawa, sought review of a decision by the Department of Home Affairs to refuse his application for a Skilled (Provisional) (Class VC) visa, specifically under the Graduate Work stream. The visa subclass in question was Subclass 485. The core of the dispute concerned whether Mr. Randhawa's stated occupation as a Painting Trades Worker was supported by his qualifications, namely a Diploma of Building and Construction (Management).

The primary legal issue before the Tribunal was whether Mr. Randhawa's Diploma of Building and Construction (Management) qualified him for the Graduate Work stream of the Subclass 485 visa, given his nominated occupation as a Painting Trades Worker. This required the Tribunal to assess the relationship between the qualification and the occupation, and whether the qualification met the specific criteria for the visa subclass.

The Tribunal found that the Diploma of Building and Construction (Management) was not sufficiently related to the occupation of a Painting Trades Worker. The reasoning was that the diploma's curriculum was focused more on management skills rather than the technical skills directly associated with the painting trade. Consequently, the Tribunal concluded that Mr. Randhawa did not satisfy the criteria for the grant of the visa.

The Tribunal affirmed the decision not to grant Mr. Randhawa a Skilled (Provisional) (Class VC) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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