Singh (Migration) - [2021] AATA 4105

Singh (Migration) [2021] AATA 4105 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Vikramjeet Singh
Mrs Manpreet Kaur
CASE NUMBER:  1821326
HOME AFFAIRS REFERENCE(S):          BCC2018/1340249
MEMBER:Ian Berry
DATE:19 October 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 19 October 2021 at 11:57am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work Stream – Painting Trades Worker – Australian study requirement – Advanced Diploma of Marketing and Communication – qualification ‘closely related’ to nominated occupation – skills acquired from qualification – ANZSCO description – nominated skills for the occupation – plans to start own business in the future – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Prasad vs Minister for Immigration & Citizenship [2012] FCA 591
Talha v MIBP [2015] 235 FCR 100
Tobon vs Minister for Immigration & Anor [2014] FCCA 2208

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 5 July 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (Act).
The applicants applied for the visas on 21 March 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 (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 because the first named applicant (applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the specific skills gained by the applicant completing his Advanced Diploma of Marketing and Communication are inconsistent with the skills that would be used by him on a day-to-day basis as a Painting Trades Worker.
The applicant and his wife Ms Manpreet Kaur, both unrepresented, appeared before the Tribunal on 11 June 2021 to give evidence and present arguments. The Tribunal received oral evidence from the applicant. The Tribunal’s hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. On 11 August 2021, the Tribunal made a decision refusing the applicants’ application.
However, on 9 July 2021, the applicants appointed a registered migration agent Mr H S Bajwa (registered migration number 0955800) to represent them. Subsequently, the representative gave to the Tribunal the following submissions:
a.A substantial number of payslips of the applicant’s employment with Multany Brothers Pty Ltd ranging from 2…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2021] AATA 4105
Case: [2021] AATA 4105
Decision Date: 19 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream, by Mr. Singh. The applicant sought to have a decision affirmed that he did not meet the criteria for the visa. The core of the dispute concerned whether the applicant's qualification was "closely related" to his nominated occupation as a Painting Trades Worker, and whether he had satisfied the Australian study requirement.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant had satisfied the Australian study requirement as defined by the Migration Regulations 1994, which involves completing registered courses over a specified period and duration. Secondly, and crucially, the Tribunal had to assess whether the applicant's Advanced Diploma of Marketing and Communication was "closely related" to his nominated occupation of Painting Trades Worker, as required by the visa subclass criteria.

The Tribunal found that the applicant had met the technical requirements of the Australian study requirement, having completed registered courses in English over a sufficient period and duration while holding a valid study visa. However, the Tribunal determined that the Advanced Diploma of Marketing and Communication was not closely related to the nominated occupation of Painting Trades Worker. The reasoning was that the skills acquired from a marketing and communication qualification did not align with the ANZSCO description of a Painting Trades Worker, nor with the skills typically associated with that occupation, even considering potential future business plans.

Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed by the Tribunal.

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 cl.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 before 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.Does the applicant meet the Australian study requirement? 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. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (IMMI 09/040). The applicant’s studies as shown in the certificate statements of results and PRISMS[1] resulted in the following qualifications attained by him:[1] Provider Registration and International Student Management System The courses undertaken by the applicant which led to his attaining the above qualifications were CRICOS[2] registered courses and all were undertaken in English.[2] Commonwealth Register of Institutions and Courses for Overseas Students The applicant’s qualifications were completed by him as a result of study over a period of at least 16 months. He undertook studying those registered courses by holding a visa allowing him to study. The table above sets out the academic weeks relating to each qualification achieved. The applicant well exceeds 92 academic weeks.Satisfying the Australian study requirement within 6 months The qualification Advanced Diploma of Marketing and Communication is the qualification which satisfied cl.485.221 where the applicant is required to complete a registered course within the six months ending the day immediately before making his application.

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 applicants Skilled (Provisional) (Class VC) visas.Ian BerryMember

Ratio Decidendi

Legal Principle Established

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