Singh (Migration) - [2020] AATA 3331

Singh (Migration) [2020] AATA 3331 (10 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amarjot Singh
CASE NUMBER:  1809805
HOME AFFAIRS REFERENCE(S):          BCC2017/4887154
MEMBER:Kira Raif
DATE:10 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 10 August 2020 at 2:30pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualifications closely related to nominated occupation – tradesman studied trade management course – consideration of whole of study and whole of occupation – nature of occupation must be determined by reference to ANZSCO – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Kabir v MIAC [2010] FMCA 577
Manik v MIAC [2012] FMCA 149
Shafiuzzaman v MIAC [2011] FMCA 874
Tahla v MIBP [2015] FCAFC 115
Tobon v Minister for Immigration [2014] FCCA 2208
Walia v MIBP [2015] FCCA 1949
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 19 March 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 20 December 2017. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations. The delegate was not satisfied that the qualifications used to satisfy the Australian study requirement were closely related to the nominated skilled occupation. The applicant seeks review of the delegate’s decision.
On 22 July 2020 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 September 2020. On 10 August 2020 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
Relevant law
Visa Class VC contains Subclass 485. 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 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,…

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) [2020] AATA 3331
Case: [2020] AATA 3331
Decision Date: 10 August 2020

CaseChat Overview and Summary

The applicant, Mr. Singh, sought review of a decision not to grant him a Subclass 485 (Temporary Graduate) visa, specifically within the graduate work stream. The dispute centred on whether Mr. Singh met the Australian study requirement, which mandates that his qualifications be closely related to his nominated occupation. The matter came before the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Mr. Singh's completed course of study was sufficiently closely related to his nominated occupation for the purposes of the Australian study requirement under the Migration Regulations. This involved considering the entirety of his study and the nature of his nominated occupation as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

The Tribunal reasoned that the nominated occupation must be identified by reference to ANZSCO. It then considered the applicant's study in "trade management" and concluded that this course was not closely related to the nominated occupation. The Tribunal affirmed the original decision not to grant the visa. The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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