Rodriguez Mendoza (Migration) - [2020] AATA 4836

Rodriguez Mendoza (Migration) [2020] AATA 4836 (19 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jhon Jairo Rodriguez Mendoza
Mrs Karlymg Antonia Rodriguez Medina
CASE NUMBER:  1801615
HOME AFFAIRS REFERENCE(S):          BCC2017/4479599
MEMBER:Kira Raif
DATE:19 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 19 October 2020 at 2:34pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Metal Fabricator – qualification ‘closely related’ to nominated occupation – Advanced Diploma of Business – Certificates in Engineering – significance of ANZSCO in determining the close relationship – Sub-Major Group 32 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222
CASES
Chawdhury v Minister for Immigration & Anor [2010] FMCA 275
Kabir v MIAC [2010] FMCA 577
Manik v MIAC [2012] FMCA 149
Pasula v Minister for Immigration [2010] FMCA 219
Shafiuzzaman v MIAC [2011] FMCA 874
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 4 January 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (‘the applicant’) applied for the visa on 27 November 2017. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 because the delegate was not satisfied the qualifications used to meet the Australian study requirement was closely related to the nominated occupation.
The applicants appeared before the Tribunal on 19 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicants were represented in relation to the review by their registered migration agent.
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.
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 primary criteria must be satisfied by at least one applicant. Other members of…

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 Rodriguez Mendoza (Migration)

Details

AGLC: Rodriguez Mendoza (Migration) [2020] AATA 4836
Case: [2020] AATA 4836
Decision Date: 19 October 2020

CaseChat Overview and Summary

The applicant, Rodriguez Mendoza, sought review of a decision not to grant them a Skilled (Provisional) (Class VC) visa, specifically under the Subclass 485 (Temporary Graduate) visa, Graduate Work stream. The nominated occupation was Metal Fabricator. The dispute centred on whether the applicant's qualifications, namely an Advanced Diploma of Business and Certificates in Engineering, were "closely related" to the nominated occupation for the purposes of the visa criteria. The matter was heard by Kira Raif, Senior Member.

The primary legal issue before the Tribunal was to determine whether the applicant's stated qualifications satisfied the requirement that they be "closely related" to the nominated occupation of Metal Fabricator. This involved an assessment of the significance of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) in establishing such a close relationship, particularly in relation to Sub-Major Group 32, which encompasses Metal Fabricators.

The Tribunal considered the relationship between the applicant's qualifications and the nominated occupation. Based on its findings, which are not detailed in the provided text, the Tribunal concluded that the applicant did not meet the criteria for the grant of the Subclass 485 visa. As this was the sole visa subclass under consideration, the Tribunal affirmed the original 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

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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 applicants Skilled (Provisional) (Class VC) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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