Sekhon (Migration) - [2020] AATA 2989

Sekhon (Migration) [2020] AATA 2989 (14 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Devinder Singh Sekhon
CASE NUMBER:  1837013
HOME AFFAIRS REFERENCE(S):          BCC2018/4569831
MEMBER:Warren Stooke AM
DATE:14 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 14 July 2020 at 3:37pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –Australian study requirement – most recently completed course of study not closely related to occupation – tradesman completed trade management course – potential relevance of subjects of course to applied trade skills – ‘closely related’ – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), (2), Schedule 2, cl 485.222
CASE
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 10 December 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 applied for the visa on 15 October 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 on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate found that the most recently completed course of study was not closely related to the occupation of Painting Trades Worker – ANZSCO: 332211.
The applicant appeared before the Tribunal on 7 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was because the courses were not closely related.
The applicant confirmed to the Tribunal that he had provided a copy of the decision to the Tribunal with his application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass…

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 Sekhon (Migration)

Details

AGLC: Sekhon (Migration) [2020] AATA 2989
Case: [2020] AATA 2989
Decision Date: 14 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Sekhon, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The applicant sought to satisfy the primary criteria for this visa, specifically the Australian study requirement and the requirement that any qualifications used to meet this requirement be closely related to their nominated skilled occupation. The Tribunal was tasked with determining whether the applicant met these criteria.

The central legal issues before the Tribunal were whether the applicant had satisfied the Australian study requirement and, crucially, whether the applicant's most recently completed course of study, a Diploma in Building and Construction (Management), was "closely related" to their nominated skilled occupation. The applicant had completed a Certificate III in Painting and Decorating and subsequently the Diploma in Building and Construction (Management). Evidence was presented regarding the subjects studied in the diploma, the applicant's work experience as a painter, and a provisional trade assessment.

The Tribunal reasoned that for a qualification to be considered "closely related" to a nominated occupation, there must be a demonstrable connection between the subjects studied and the practical skills of the trade. While the applicant had provided a list of subjects from their diploma, the Tribunal found that these subjects, such as "Administration of Legal Obligation of a Building or Construction Contractor" and "Manage budget and financial plans," were primarily managerial and administrative in nature, rather than directly related to the applied trade skills of painting and decorating. The Tribunal concluded that the applicant had not sufficiently demonstrated that the diploma was closely related to their nominated occupation as required by regulation 485.222.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, Subclass 485. The applicant failed to satisfy the criteria for the visa, and as this was the only relevant subclass, the decision under review was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. The applicant is a 26 year from India, who provided evidence that he that he completed the following courses of study:a.Certificate III in Painting and Decorating from 15 March 2016 to 15 May 2017; b.Diploma in Building and Construction (Management) from 15 June 2017 and 15 June 2018. The Diploma in Building and Construction (Management) transcript provided by the applicant identified completion of the following subjects:a.Administration of Legal Obligation of a Building or Construction Contractor;b.Manage personal work priorities, performance and development;c.Ensure team effectiveness;d.Manage quality customer service;e.Apply principles of OHS risk management;f.Recruit, select and induct staff;g.Manage construction works;h.Manage budget and financial plans;i.Manage operational plans;j.Support Employee Industrial Relations procedures;k.Select and manage Building and Construction Contractorsl.Manage Environmental Practice and Processes in Building and Construction The applicant provided evidence that he was successful with obtaining a provisional trade assessment with Trades Recognition Australia: TRA18/999324636 and had not yet obtained a skills assessment. The applicant provided evidence that he has worked for 4 years as a painter with four employers, including Kuc Nominees Pty Ltd for 1.5 years and currently with R and D Bayside Painting Pty Ltd, since February 2020. The applicant stated that his current remuneration is $32 per hour and that the materials and equipment are provided by the employer. The Tribunal asked the applicant to explain how his most recent course is ‘closely related’ to the nominated occupation and the applicant provided a response against each of the subjects contained in the Diploma in Building and Construction (Management), in the submission and at hearing, as follows: The applicant provided the Tribunal with details of the subjects studied for the Diploma in Building and Construction (Management), which was also addressed in evidence and included the following: Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:·that are registered courses; and·that were completed in a total of at least 16 calendar months; and·that were completed as a result of a total of at least 2 academic years study; and·for which all instruction was conducted in English; and·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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