Singh (Migration)

[2019] AATA 4570

Singh (Migration) [2019] AATA 4570 (18 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Singh

CASE NUMBER:  1710401

HOME AFFAIRS REFERENCE(S):           BCC2017/876595

MEMBER:Warren Stooke AM

DATE:18 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 18 September 2019 at 3:36pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – course not related to occupation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.221, 485.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 April 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 March 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations on the basis that the applicant completed various courses in the Motor Mechanic (General) stream ANZSCO Code 321211 and that the course completed within the six months period prior to lodging the visa application was not related to the occupation of Motor Mechanic (General).

4. The applicant appeared before the Tribunal on 3 September 2019 to give evidence and present arguments.

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 20 April 2017 and that he understood the content of the decision. In this regard, the applicant stated - “they told me my last course was not valid”.

6. The applicant stated that his agent had lodged the application and that he thought the agent had included a copy of the decision with the application and that he disagreed with the delegate’s decision.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 those requirements.

9. The applicant provided evidence that in the future he wanted his own garage and that he just wanted to learn some business techniques.

10. The Tribunal asked the applicant to explain how the undertaking of an Advanced Diploma of Business related to his application for the occupation of Motor mechanic (General) ANZSCO Code 321211. The applicant replied that his lawyer told him that with similar courses that no-one gets refused and most get approved. The applicant said that he did not know he had to submit his application within 6 months of completing an automotive course, otherwise he would have undertaken the Diploma of Automotive Technology after he had complted the Advanced Diploma in Business.

11. The Tribunal, on the basis of the documents submitted prior to the hearing, confirmed with the applicant that he had completed, in the timeframes identified, the following courses:

    a.Advanced Diploma of Business - Technical Education Development Institute from 15 January 2016 to 30 December 2016

    b.Diploma of Automotive Technology - Acumen Institute of Further Education from 14 March 2015 to 30 November 2015

    c.Advanced Diploma of Management - The Imperial College of Australia from 2 December 2013 to 28 November 2014

    d.Cert IV in Automotive Technology - Education Access (Australia) Pty Ltd from 15 July 2013 to 8 November 2013

    e.Cert IV in Business - The Imperial College of Australia from 3 December 2012 to 31 May 2013

    f.Diploma of Automotive Management - The Ashmark Institute of Australia from 15 August 2011 to 28 October 2012

    g.Diploma of Management - The Ashmark Institute of Australia from 12 July 2010 to 10 July 2011

    h.Cert III in Automotive Mechanical Technology - The Ashmark Institute of Australia from 13 July 2009 to 18 June 2010

12. Further, the Tribunal confirmed with the applicant, from the academic transcript, that the most recent course undertaken, the Advanced Diploma of Business, which was completed on 30 December 2016, included the following core modules:

    a.Develop an advertising campaign

    b.Develop workplace policy and procedures for sustainability

    c.Manage knowledge and information

    d.Lead and manage organisational change

    e.Provide leadership across the organisation

    f.Develop and implement strategic plans

    g.Develop organisational marketing objectives

    h.Develop a marketing plan

13. The applicant responded to the Tribunal that the Advanced Diploma of Business was about his future and how to expand his business and that maybe he will have a dealership.

14. The applicant provided evidence that he had been working in the automotive industry, as a motor mechanic, that included tenure with Satnem Automotive (from July 2016 to July 2018); Toyota dealership (from September 2018 to May 2019) and Khalse Automotive from 5 August 2019 to the present.

15. The applicant produced evidence that he had successfully obtained accreditation in the occupation of Motor Mechanic (General) ANZSCO 321211 with Trades Recognition Australia on 9 April 2018 [SF2621].

    Does the applicant meet the Australian study requirement?

16. 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.

17. ‘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).

18. On the basis of the evidence the applicant does not meet r.1.15F(2), as in the 6 months prior to application on 6 March 2017, the applicant had participated in an Advance Diploma of Business course that included modules unrelated to the occupation of Motor Mechanic (General) ANZSCO 321211. In this regard, the Tribunal finds, on the basis of the transcript of the modules undertaken in the Advanced Diploma of Business, that all of the subjects related to management, organisational development and performance or marketing. As such, none of the modules are accepted as ‘closely related to the occupation of Motor Mechanic (General) ANZSCO 321211.

19. The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.

20. As the applicant’s last undertaken qualification, which was completed within the 6 months prior to lodging the application for a Skilled (Provisional) (Class VC) visa is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

21. 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

22. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Warren Stooke AM
    Member