Shi (Migration) - [2022] AATA 1682

Shi (Migration) [2022] AATA 1682 (22 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yingying Shi
Mr Fengming Lin
Miss Zhifan Lin
REPRESENTATIVE:  Miss Jingya Kou (MARN: 1572574)
CASE NUMBER:  1910467
HOME AFFAIRS REFERENCE(S):          BCC2018/6034428
MEMBER:Susan Trotter
DATE:22 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 22 April 2022 at 6:15pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –graduate work stream – most recent qualification closely related to nominated skilled occupation – qualification in interpreting and occupation of developer programmer – comparison of units of study and ANZSCO description of occupation – relationship must be more than merely complementary – bilingual systems, software, clients and data – requirement applies to nominated occupation, not to nominee’s particular position – some units of study directly related to occupation – computer code not ‘language other than English’ – other, closely related qualifications completed more than six months before visa application made – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), rr 1.15F(1), 2.26AC(6), Schedule 2, cls 485.221, 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [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 9 April 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant, the primary visa applicant (the applicant) is a now 34-year-old citizen of China. She applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 8 January 2019. The second and third-named applicants (the secondary applicants) applied as secondary visa applicants on the basis that they are each a member of the family unit of the applicant.
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 (Cth) (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 visas on the basis that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the Diploma of Interpreting qualification completed by the applicant is closely related to the applicant’s nominated skilled occupation 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 Shi (Migration)

Details

AGLC: Shi (Migration) [2022] AATA 1682
Case: [2022] AATA 1682
Decision Date: 22 April 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms Shi, against the decision not to grant her a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – graduate work stream. The primary dispute revolved around whether Ms Shi's most recent qualification was closely related to her nominated skilled occupation, and whether she met the Australian study requirement within the specified timeframe. The decision was made by the Tribunal.

The Tribunal was required to determine two key issues: firstly, whether Ms Shi met the Australian study requirement in the six months immediately preceding her visa application, and secondly, whether each of the qualifications she relied upon to satisfy this requirement was closely related to her nominated skilled occupation. The applicant had listed a Diploma of Information Technology, a Bachelor of Science in Information Technology, and an Advanced Diploma of Translating as her Australian studies.

In its reasoning, the Tribunal found that the Diploma of Information Technology and the Advanced Diploma of Translating qualified as diplomas, and the Bachelor of Science in Information Technology as a degree, for the purposes of the Australian study requirement. It was satisfied that these courses were registered and completed over a sufficient period, with all instruction provided in English. However, the Tribunal determined that Ms Shi's qualification in interpreting and translating was not closely related to the nominated occupation of developer programmer. The Tribunal reasoned that the relationship between a qualification and an occupation must be more than merely complementary, and that while some units of study might have had a tangential connection, the core of the interpreting qualification did not directly align with the ANZSCO description of a developer programmer. The Tribunal also noted that other, potentially more relevant qualifications, were completed more than six months before the visa application.

Consequently, the Tribunal affirmed the decision not to grant Ms Shi a Skilled (Provisional) (Class VC) visa. The Tribunal also affirmed the decision not to grant secondary applicants Subclass 485 visas, as they did not meet the criteria for being a member of the family unit of a Subclass 485 visa holder and had not demonstrated they met the primary visa criteria in their own right.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that the issues to be determined by the Tribunal are:(a) Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?(b) Is each degree, diploma or trade qualification relied upon by the applicant to satisfy the Australian study requirement closely related to the applicant’s nominated skilled occupation?CONSIDERATION OF CLAIMS AND EVIDENCE The applicant listed the following Australian study in her visa application (unedited):Diploma of UTS Insearch 10/02/14 to 28/05/15Information Technology Bachelor of Science in University of Technology Sydney 27/07/15 to 27/11/17Information Technology Advanced Diploma of Sydney Institute of Interpreting and 18/12/17 to 15/07/18Translating and Translating Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application? The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by reg 1.15F to be taken into account in establishing whether the Australian study requirement is met. The Tribunal is satisfied and finds that the Diploma of Information Technology and the Advanced Diploma of Translating are diplomas as defined by reg 2.26AC(6) and can be taken into account. Further the Tribunal is satisfied that the Bachelor of Science in Information Technology is a degree as defined by reg 2.26AC(6) and can be taken into account. Having regard to all evidence and material before it, including the Australian Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records, the Tribunal finds that the Diploma of Information Technology, the Bachelor of Science in Information Technology and Advanced Diploma of Translating are registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students. The Tribunal therefore finds that reg 1.15F(1)(a) is met. Based on the evidence before the Tribunal, these courses were studied by the applicant for a total of at least 16 calendar months. The Tribunal therefore finds that reg 1.15F(1)(b) is met. The Tribunal discussed with the applicant and her representative the academic duration of each course. The Tribunal noted that CRICOS shows that the Bachelor of Science in Information Technology was 156 weeks but because courses can change there did not seem to be current information on CRICOS as to the academic duration of the Diploma of Information Technology and the Advanced Diploma of Translating. The Tribunal requested that the applicant provide information showing the academic duration of these courses. That information was not provided; however, the Tribunal is satisfied that the Bachelor of Science in Information Technology and Diploma of Information Technology courses total at least two academic years. Further, the Tribunal is satisfied on the evidence before it that all instruction was in English for the courses. The Tribunal is therefore satisfied and finds that the requirements of reg 1.15F(1)(c) and reg 1.15F(1)(d) are met in relation to these three courses together.

Decision

Reasons for decision

The Tribunal must also affirm the decision not to grant the secondary applicants Subclass 485 visas as they do not meet the secondary visa criterion requiring them to each be a member of the family unit of a person who holds a Subclass 485 visa (cl 485.311), and there is no evidence that they meet the primary visa criteria for this subclass in their own right. DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

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