Sandip Kaur (Migration) - [2021] AATA 1174

Sandip Kaur (Migration) [2021] AATA 1174 (10 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sandip Kaur Sandip Kaur
CASE NUMBER:  1905659
HOME AFFAIRS REFERENCE:               BCC2018/5725043
MEMBER:L. Symons
DATE:10 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 10 February 2021 at 5:15pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Chef – qualification was not closely related to the nominated occupation –decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.222
CASES
Tobon v MIBP [2014] FCCA 2208
Talha v MIAC [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 19 February 2019 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 19 December 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 because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because he was not satisfied that each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The applicant appeared before the Tribunal by telephone on 31 August 2020 to give evidence and present arguments. She was represented in relation to the review by her registered migration agent, Yashpal Edra, who attended the hearing by telephone.
On 4 January 2021, the Tribunal made a decision on the review. On 13 January 2021, the Tribunal received an email letter from the applicant’s migration agent indicating that the Tribunal had made a jurisdictional error as paragraph 17 of the Decision Record indicated that the applicant had been given further time after the hearing to provide additional evidence and submissions and had not done so but post hearing submissions had been lodged with the Tribunal.
A review of the Tribunal’s file indicated that post hearing submissions were received on 7 September 2020. As the decision made on 4 January 2021 was made without consideration of submissions made by the applicant’s migration agent, the Tribunal was satisfied that a jurisdictional error had been made. Therefore, on 14 January 2021 the Tribunal made a decision to reopen the case for reconsideration. On 15 January…

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: Sandip Kaur (Migration) [2021] AATA 1174
Case: [2021] AATA 1174
Decision Date: 10 February 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Sandip Kaur, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, in the Graduate Work stream. The applicant nominated the occupation of Chef (ANZSCO 351311) and sought to satisfy the primary criteria under clause 485.222 of Schedule 2 to the Regulations, which requires that any degree, diploma, or trade qualification used to meet the Australian study requirement be 'closely related' to the nominated skilled occupation.

The central legal issue before the Tribunal was whether the applicant's qualifications were indeed 'closely related' to the nominated occupation of Chef. The Tribunal was required to interpret the meaning of 'closely related' in the context of migration law, considering established case law. This involved determining how to assess the relationship between the applicant's qualifications and the nominated occupation, and whether the entirety of the studies needed to be compared with the entirety of the occupation.

The Tribunal reasoned that the term 'closely related' does not require an exact correspondence but must be more than merely complementary. It emphasised that the assessment must focus on the nominated occupation as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO), including relevant higher groupings, and that the decision-maker is entitled to give substantial weight to ANZSCO descriptions. The Tribunal also noted that the assessment should be objective, based on the applicant's qualifications and the ANZSCO definition, rather than the applicant's subjective views. Furthermore, where multiple qualifications are used, each must be closely related to the nominated occupation, and the entire body of studies must be compared with the entire nominated occupation.

Ultimately, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa because her qualifications were not found to be closely related to the nominated occupation of Chef. Accordingly, 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

Having reconsidered the case, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.222 of Schedule 2 to the Regulations. Clause 485.222 requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement is ‘closely related’ to her nominated skilled occupation. She has nominated the skilled occupation of Chef (ANZSCO 351311). The issue in the present case is whether she meets this requirement. Relevant law The term 'closely related' is not defined in the legislation but it has been considered by the Courts which have held that the connection between the two things do not require an exact correspondence[1] but must be more than merely complementary.[2] [1] MIBP v Dhillon (2014) 227 FCR 525.[2] Uddin v MIAC [2010] FCA 1282. In making the assessment, it is necessary to focus on the nominated occupation rather than on the applicant’s claimed or proposed occupation or career path. The Courts have held that the decision maker, in this case the Tribunal, is entitled to give substantial weight to the contents of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) descriptions.[3] [3] Manik v MIAC [2012] FMCA 149 citing Shukla v MIAC [2010] FMCA 625, Kabir v MIAC [2010] FMCA 577 and Chawdhury v MIAC [2010] FMCA 275. More recent authority suggests that the nature of the nominated occupation must be determined by reference to ANZSCO[4] and that the ANZSCO code needs to be read as a whole including, not only the statement of tasks specified in the relevant unit group or at the lower level of the occupation itself, but also relevant information in the higher groupings into which the nominated occupation falls.[5][4] Talha v MIAC [2015] FCAFC 115.[5] Ibid. It is also appropriate to objectively consider the relationship of the applicant's qualification or qualifications to the ANZSCO definition of the occupation rather than relying on the applicant's own description of what the occupation entails, or the applicant's own view of the proximity of the qualifications to the nominated occupation.[6] [6] Chawdhury v MIAC [2010] FMCA 275. Where more than one qualification is being used to satisfy the study requirement, all the courses must be closely related to the nominated skilled occupation. This requires a comparison between each qualification and the skilled occupation, not a comparison between the two or more qualifications.[7] [7] Manik v MIAC [2012] FMCA 149 at [23] to [24], upheld on appeal in Manik v MIAC [2012] FCA 619. It is ultimately a matter for the decision-maker, in this case the Tribunal, to decide whether the applicant's Australian qualifications are 'closely related' to the nominated skilled occupation and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated skilled occupation.[8] The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation or some part of it. [9]Is each degree, diploma or trade qualification used by the applicant to satisfy the Australian study requirement closely related to her nominated skilled occupation?[8] Talha v MIAC [2015] FCAFC 115 at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 at [26].[9] Constantino v MIBP [2013] FCA 1301 at [27].

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.L. SymonsMember

Ratio Decidendi

Legal Principle Established

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