SINGH (Migration) - [2019] AATA 6078

SINGH (Migration) [2019] AATA 6078 (20 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr JASPREET SINGH
Mrs NARINDER KAUR
CASE NUMBER:  1712779
HOME AFFAIRS REFERENCE(S):          BCC2017/1902809
MEMBER:Jade Murphy
DATE:20 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 20 December 2019 at 8:40am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Advanced Diploma of Business – closely related’ to nominated occupation – Air-conditioning and Refrigeration Mechanic – ANZSCO description – applicant’s future business plans – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

CASES
Pasula v MIAC [2010] FMCA 219
Tahla 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 Immigration and Border Protection on 1 June 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 29 May 2017. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that applicant’s qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The applicants appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative, Ms Merlino, attended the Tribunal hearing.
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…

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.

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Details

Case: [2019] AATA 6078
Decision Date: 20 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review by Mr Singh concerning the refusal of his Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream. The primary issue before the Tribunal was whether Mr Singh met the criteria under cl.485.222 of Schedule 2 to the Regulations, which requires that any qualification used to satisfy the Australian study requirement must be closely related to the applicant's nominated skilled occupation. Mr Singh had nominated the occupation of Air-conditioning and Refrigeration Mechanic (ANZSCO 342111).

The Tribunal was required to determine if Mr Singh's Advanced Diploma of Business, the qualification completed within six months of his visa application, was "closely related" to the nominated occupation of Air-conditioning and Refrigeration Mechanic. The delegate's decision, which was under review, had found that the ANZSCO description for Air-conditioning and Refrigeration Mechanic did not include business-related activities, and therefore the Advanced Diploma of Business was not considered closely related.

In its reasoning, the Tribunal noted that while Mr Singh stated his intention to open his own business and that his business qualifications would assist him in areas such as running a business and customer satisfaction, these future plans and the general utility of a business qualification did not satisfy the delegate, nor the Tribunal, that the qualification was "closely related" to the technical requirements of the nominated occupation as defined by ANZSCO. The Tribunal concluded that Mr Singh did not satisfy cl.485.222.

Consequently, the Tribunal affirmed the decision not to grant Mr Singh the 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

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 the requirements in cl.485.222.Is the qualification ‘closely related’ to the nominated occupation? In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). In this case, the applicant nominated the occupation of Air-conditioning and Refrigeration Mechanic (ANZSCO 342111) which is a skilled occupation specified in IMMI 16/059. In support of his application for review, the applicant’s representative submitted written submissions dated 20 November 2019 with supporting documents. These have been considered by the Tribunal.Hearing 27 November 2019 At hearing, the applicant confirmed his study history as follows:·Advanced Diploma of Business –completed 30 March 2017·Diploma of Business – completed 25 January 2015·Certificate III in Refrigeration and Air-conditioning – completed 21 September 2011 The Tribunal told the applicant that it considered the relevant qualification is the Advanced Diploma of Business given that is the qualification that the applicant completed within 6 months of lodging his application for this visa. The applicant confirmed that he understood. The Tribunal told the applicant that the delegate did not consider that an Advanced Diploma of Business was closely related to his nominated occupation of Air-conditioning and Refrigeration Mechanic (ANZSCO 342111). The delegate looked at the ANZSCO description of Air-conditioning and Refrigeration Mechanic (and reproduced that description in the decision) and noted it did not contain any business related activities. Although the delegate noted that a business qualification may possibly assist the applicant in his future career plan this did not satisfy the delegate that the applicant met the criteria in cl.485.222. The Tribunal asked the applicant whether he wished to respond to the delegate’s concerns as expressed in the primary decision. The applicant told the Tribunal that he is planning to open his own business and that is why he wanted to study a business course. The applicant stated that his business qualifications taught him a lot of things which have already been explained in written submissions, for example running a business and customer satisfaction.

Decision

Reasons for decision

On the basis of the above findings, the applicant does not satisfy cl.485.222, as required 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.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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