Reza Khan (Migration) - [2018] AATA 5124

Reza Khan (Migration) [2018] AATA 5124 (18 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muktafe Reza Khan
CASE NUMBER:  1700964
HOME AFFAIRS REFERENCE(S):           BCC2016/3237458
MEMBER:Kira Raif
DATE:18 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 18 December 2018 at 7:46am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Australian study requirement – qualification not closely related to his nominated occupation – Chef ANZSCO 351311 – Diploma of Management completed six months before application date – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65,
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222, rr 1.03, 1.15I
CASES
Chawdhury v Minister for Immigration & Anor [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Manik v MIAC [2012] FMCA 149
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
Walia v MIBP [2015] FCCA 1949
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 13 January 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of Bangladesh, born in December 1981. He applied for the visa on 29 September 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to his nominated occupation. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 17 December 2018 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
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.
Clause 485.221 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available – for which the…

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: Reza Khan (Migration) [2018] AATA 5124
Case: [2018] AATA 5124
Decision Date: 18 December 2018

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, Graduate Work stream, brought before Senior Member Kira Raif of the Administrative Appeals Tribunal. The applicant sought review of a decision not to grant this visa.

The central legal issue before the Tribunal was whether the applicant satisfied the Australian study requirement for the subclass 485 visa, specifically concerning the relationship between his completed qualification and his nominated occupation. The applicant had completed a Diploma of Management approximately six months prior to his visa application and nominated the occupation of Chef (ANZSCO 351311).

The Tribunal's reasoning focused on the requirement that the applicant's qualification must be closely related to their nominated occupation. In this instance, the Tribunal found that the Diploma of Management was not closely related to the occupation of Chef. Consequently, the applicant did not meet the criteria for the grant of the visa.

The Tribunal affirmed the decision not to grant the applicant the 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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