Setiya v MICMSMA

Case [2021] FCCA 544

FEDERAL CIRCUIT COURT OF AUSTRALIA

Setiya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 544

File number(s): BRG 201 of 2020
Judgment of: JUDGE JARRETT
Date of judgment: 19 March 2021
Catchwords: MIGRATION – Judicial review – Temporary Graduate (Graduate Work) (Class VC) (Subclass 485) visa – whether applicant satisfied Australian study requirement – whether course of study were closely related to nominated skilled occupation – no jurisdictional error – dismissed.
Legislation:

Migration Regulations 1994 (Cth), regs. 1.15F, 1.15F(1)(a), 1.15F(1)(b), 1.15F(1)(c), 1.15I, Schedule 2 cll., 485.2, 485.21, 485.22, 485.211, 485.221, 485.222

Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 cll.6, 7
Cases cited:

Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157

Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100
Number of paragraphs: 50
Date of last submission/s: 17 September 2020
Date of hearing: 17 September 2020
Place: Brisbane
Counsel for the First Applicant: Mr See
Solicitor for the First Applicant: Arshad and Chand Lawyers
Solicitor for the First Respondent: Sparke Helmore
The Second Respondent entered a submitting appearance.

ORDERS

BRG 201 of 2020
BETWEEN:

NISHANT SETIYA

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS THAT:

1.The amended application filed on 23 June, 2020 be dismissed.

2.The applicant pay the first respondent’s costs of and incidental to the application in a fixed sum.

REASONS FOR JUDGMENT

JUDGE JARRETT:

  1. The applicant seeks judicial review of a decision of the second respondent made on 2 March, 2020 which affirmed a decision of a delegate of the first respondent not to grant him a Temporary Graduate (Graduate Work) (Class VC) (Subclass 485) visa.

  2. The second respondent determined that the applicant did not satisfy the criteria set out within cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) for the grant of the visa. The applicant contends that decision is affected by jurisdictional error because:

    (a)by adopting a restricted approach to the interpretation of cl 485.222 and failing to take into account relevant considerations, the second respondent committed jurisdictional error when it determined that the applicant’s studies were not closely related to the nominated skill occupation of chef;

    (b)that in reaching its decision, the second respondent had erroneously applied Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 in a manner inconsistent with the decision in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157;

    (c)that in adopting the approach that it did, the second respondent failed to correctly assess the previous business qualifications undertaken by the applicant; and

    (d)that in undertaking its task, the second respondent had misapplied the law, reached incorrect conclusions in relation to the facta probantia and as a result erroneously determined the factum probandum.

  3. The first respondent opposes the application and the second respondent enters a submitting appearance.

  4. For the reasons that follow, the…

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AGLC
Setiya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 544
Case
[2021] FCCA 544
Decision Date

CaseChat Overview and Summary

Jarrett J of the Federal Court of Australia considered an application by Mr Setiya, a citizen of India, for a subclass 485 visa in the Graduate Work stream. Mr Setiya had applied for the visa on the basis of his employment as a "Chef". The primary criteria for the grant of this visa, as set out in clause 485.221 and 485.222 of the Migration Regulations, required the applicant to have satisfied the Australian study requirement in the six months prior to his application, and for each qualification used to satisfy this requirement to be closely related to his nominated skilled occupation.

The legal issues before the Court were whether Mr Setiya had satisfied the Australian study requirement and whether his qualifications were closely related to his nominated occupation as a Chef. Mr Setiya had provided several qualifications, including a Certificate IV in Commercial Cookery, and had also completed a Diploma of Hospitality Management after his visa application and the initial delegate's decision, but before the second respondent's decision. The definition of the Australian study requirement in regulation 1.15F stipulated that a person must have completed one or more registered degrees, diplomas, or trade qualifications from an Australian educational institution, completed over at least 16 calendar months and involving at least two academic years of study, with all instruction in English, undertaken while holding a visa authorising study in Australia.

Jarrett J reasoned that the second respondent's finding that Mr Setiya did not meet the criteria for the grant of the visa was plainly open to it on the evidence. The Court noted that the Diploma of Hospitality Management was completed after the visa application and the delegate's decision, and that Mr Setiya had not relied on this qualification. The Court found that the applicant's arguments did not add to previous grounds and did not reveal jurisdictional error.

Consequently, the application was dismissed, and Mr Setiya was ordered to pay the first respondent's costs in a fixed amount.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the application must be dismissed.BACKGROUND On 25 August, 2017 the applicant, a citizen of India, applied for the visa the subject of these proceedings on the basis of his employment as a “Chef”. The conditions for the grant of that visa are set out within Schedule 2 of the Migration Regulations. Clause 485.2 of the Regulations makes clear that if the applicant applies for a subclass 485 visa in the Graduate Work stream, the criteria in subdivision 485.21 and 485.22 are the primary criteria for the grant of the visa. The criteria in subdivision 485.211 are not relevant to the present application. Criteria 485.221 and 485.222, which needed to be satisfied at the time of the decision on the application, provided, at the relevant time:485.221The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.485.222Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation. Those criteria required the applicant to demonstrate:(a)his study achievements including his degrees, diploma and trade qualifications;(b)whether these satisfy the Australian study requirement; and(c)that they closely related to the applicant’s nominated skill occupation. In his application, the applicant indicated that he had completed the following eligible qualifications: (a)a Certificate IV in Business;(b)a Diploma of Business;(c)an Advanced Diploma of Business; and(d)a Certificate IV in Commercial Cookery. The applicant had also enrolled in and completed a Diploma of Hospitality Management. It was completed after the applicant made his visa application and after the delegate’s decision on his application was made, but before the second respondent’s decision on the application. However, as the second respondent recorded in its reasons at [10], “It is noted that the applicant had commenced the Diploma of Hospitality Management. PRISMS records the applicant completed this registered course on 11 May 2018, subsequent to the making of the visa application. He has neither made a submission in relation to this registered course nor relied on it.” The Australian study requirement is a phrase that is defined in reg. 1.15F as follows:1.15F Australian study requirement(1) 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:(a) that are registered courses; and(b) that were completed in a total of at least 16 calendar months; and(c) that were completed as a result of a total of at least 2 academic years study; and(d) for which all instruction was conducted in English; and(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground does not add to the previous grounds, but seeks to reiterate albeit in a different form, the arguments raised in the first three grounds. It does not reveal jurisdictional error. As the first respondent submits, the second respondent’s finding that the applicant did not meet the criteria for the grant of the visa was plainly open to it on the evidence. CONCLUSION The application must be dismissed and the applicant must pay the first respondent’s costs, in the way sought by the first respondent in its written submissions – “in a fixed amount”.

Ratio Decidendi

Legal Principle Established

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