Saqib (Migration)

[2018] AATA 5277

Saqib (Migration) [2018] AATA 5277 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Saqib

CASE NUMBER:  1711806

HOME AFFAIRS REFERENCE:                BCC2017/1272297

MEMBER:Lilly Mojsin

DATE:22 November 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 22 November 2018 at 04:29pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Welder (First Class) – Australian study requirement – Diploma of Business – study closely related to nominated skilled occupation – directly transferable skills – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 441G
Migration Regulations 1994 (Cth), Schedule 2, cls 485.221, 485.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 May 2017 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. 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.

3. The visa applicant applied for the visa on 4 April 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the applicant did not complete a course in Australia closely related to the applicant's nominated skilled occupation.

4. By letter dated 2 November 2018 and posted to the applicant in accordance with section 441G of the Migration Act 1958, the applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, at a hearing on 22 November 2018 at 12.30 pm.

5. The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

6. The applicant did not attend the Tribunal on 22 November 2018 at 12.30 pm and the Tribunal has received no explanation.

7. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On 4 April 2017 the applicant lodged an online application for a 485 Graduate Work stream visa. In the visa application, the applicant declared his nominated skilled occupation as occupation of Welder (First Class) ANZSCO 322313.

9. The applicant declared the following completed course of study under Australian qualifications:

   ·Diploma of Business Australis Institute

   ·Certificate IV in Engineering from Sheila Baxter Training Centre Pty Ltd completed.

10. The applicant provided a letter of completion to support his declared study in Australia. The letter of completion explained that the applicant’s Diploma of Business was essential for an individual to grow professionally. By completing business studies, he had an edge to progress faster in his field. In support of his claims he provided a few job advertisements which need business management skills along with technical skills. Therefore, he believes that these two studies are inline and related to one another.

    REASONS AND FINDINGS

11. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream that include cl.485.221 and cl.485.222 of Schedule 2 to the Regulations. These clauses require that the applicant must have satisfied the 'Australian study requirement' in the six months immediately preceding the day the visa application was made (cl.485.221); and 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).

12. 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 number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). The relevant instrument for this purpose is IMMI 18/051.

13. Cl. 485.221 states:  

    The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.

14. A qualification obtained by the applicant being a Certificate IV in Engineering from Sheila Baxter Training Centre Pty Ltd was completed more than 6 months prior to lodging a Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa application. The Tribunal finds the applicant does not meet cl.485.221.

15. Each qualification used to satisfy the Australian study requirement must be closely related to the nominated occupation.

16. In regard to a Diploma of Business, the skill set underpinning the qualification should be directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.

17. In order to determine if a qualification is closely related to their nominated skilled occupation, the qualification must be compared to the occupation's ANZSCO unit group description.

18. The description for the nominated skilled occupation ANZSCO 322313 Welder (First Class)[1]

    Fabricates and repairs metal products using various welding techniques. Design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications.

    [1]

19. Australis Institute describes its Diploma of Business[2] course:

    This course will qualify successful graduates to carry out entry level Business administration roles.

    [2]

20. The description in ANZSCO as listed above does not refer to business administration related units as benefiting this occupation. 

21. As the applicant did not attend the Tribunal hearing the Tribunal is unable to explore with the applicant the relationship of a qualification in Diploma of Business with the ANZSCO description of Welder (First Class).

22. On the information available, the Tribunal is not satisfied that the qualification of Diploma of Business is closely related to the applicant’s nominated skilled occupation Welder (First Class) as described in ANZSCO 322313 Welder (First Class).

23. The Tribunal, therefore finds that the applicant does not meet cl. 485.222.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Lilly Mojsin
    Member