Singh (Migration) - [2018] AATA 3899

Singh (Migration) [2018] AATA 3899 (14 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mandeep Singh
CASE NUMBER:  1708968
DIBP REFERENCE(S):  BCC2017/652020
MEMBER:Susan Trotter
DATE:14 August 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 14 August 2018 at 5:27pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – relation of studies to nominated occupation – diploma and trade qualifications – study undertaken in time period – some skills from course are related – nature of occupation as a whole – recent qualification not closely related – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC, 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
Kim (Migration) [2018] AATA 126
MIBP v Dhillon (2014) 227 FCR 525
Pasula v Minister for Immigration [2010] FMCA 219
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 then Minister for Immigration and Border Protection[1] (the Minister) on 7 April 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
[1] Now the Minster for Home Affairs
The applicant is a 24 year old citizen of India. He first arrived in Australia in January 2014 as the holder of a student visa. He has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 17 February 2017.
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 delegate refused to grant the visa 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 Leadership and Management qualification completed by the applicant is closely related to the applicant’s nominated skilled occupation of Chef (ANZSCO Code 351311) as required.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 April 2017.
The applicant appeared before the Tribunal on 26 July 2018 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES
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.
Clause 485.221 provides that the applicant must have satisfied the ‘Australian study requirement’ in the period 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 Singh (Migration)

Details

AGLC: Singh (Migration) [2018] AATA 3899
Case: [2018] AATA 3899
Decision Date: 14 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr. Singh concerning the refusal of his Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa. The core of the dispute revolved around whether Mr. Singh met the requirements for this visa, particularly in relation to his Australian study qualifications and their relevance to his nominated occupation.

The Tribunal was required to determine two primary issues. Firstly, whether Mr. Singh had satisfied the Australian study requirement within the six months preceding his visa application. Secondly, and crucially, the Tribunal had to assess whether each of the degrees, diplomas, or trade qualifications relied upon by Mr. Singh to meet the Australian study requirement were closely related to his nominated skilled occupation.

In its reasoning, the Tribunal first confirmed that the qualifications presented by Mr. Singh – a Diploma of Leadership and Management and Certificates III and IV in Commercial Cookery – were indeed a diploma and trade qualifications, respectively, as defined by the relevant regulations. It was also satisfied that these courses were registered and undertaken for a sufficient duration to meet the Australian study requirement. However, the Tribunal found that while some skills acquired from the courses might have been tangentially related, the qualifications as a whole, particularly the Diploma of Leadership and Management, were not closely related to the applicant's nominated occupation. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa.

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

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 his visa application (unedited):Diploma of Kings Institute of ManagementLeadership and Management and Technology 01/02/16 to 27/01/17Certificate IV in Kings Institute of Management Commercial Cookery and Technology 27/07/15 to 29/01/16Certificate 3 in Kings Institute of Management Commercial Cookery and Technology 28/07/14 to 19/06/15Issue 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 r.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 Leadership and Management is a diploma as defined by r.2.26AC(6) and can be taken into account. Further the Tribunal is satisfied that the Certificate III in Commercial Cookery and the Certificate IV in Commercial Cookery are trade qualifications as defined by r.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 and Provider Registration and International Student Management System records, the Tribunal finds that the Diploma of Leadership and Management course, the Certificate III in Commercial Cookery course and the Certificate IV in Commercial Cookery course 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 r.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 r.1.15F(1)(b) is met. CRICOS records show that the academic duration of the Diploma of Leadership and Management was 52 weeks, the academic duration of the Certificate III in Commercial Cookery was 47 weeks and the academic duration of the Certificate IV in Commercial Cookery was 69 weeks. These courses together were therefore of an academic duration of 168 weeks in total (that is, 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 rr.1.15F(1)(c) and r.1.15F(1)(d) are met in relation to these three courses together.

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.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

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