UPADHYAY (Migration) - [2018] AATA 659

UPADHYAY (Migration) [2018] AATA 659 (16 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dipen Shirishkumar UPADHYAY
CASE NUMBER:  1701002
DIBP REFERENCE(S):  BCC2016/3966263
MEMBER:Katie Malyon
DATE:16 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 16 March 2018 at 1:23 pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary graduate) – Nominated occupation – Developer Programmer – Satisfies the ‘Australian study requirement’ – Advanced Diploma in Marketing and his Advanced Diploma in Management qualifications – Not closely related to the nominated occupation
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, 2.26AC Schedule 2 cls 485.111, 485.221, 485.222, 486.222
Education Services for Overseas Students Act 2000 s 9
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
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 on 5 January 2017 to refuse to grant the applicant, Mr Dipen Shirishkumar Upadhyay, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
Mr Upadhyay applied for the visa on 24 November 2016 in the Graduate Work stream. 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). Mr Upadhyay nominated the occupation of Developer Programmer ANZSCO 261312 in his Subclass 485 visa application.
The delegate refused to grant the visa because Mr Upadhyay did not satisfy cl.485.221 and cl.486.222 of Schedule 2 to the Regulations on the basis that his Advanced Diploma of Network Security obtained from Pacific College of Technology (Pacific College) was completed on 6 December 2013, that is, more than 6 months prior to lodging his Subclass 485 visa application on 24 November 2016. Furthermore, Mr Upadhyay’s Advanced Diploma of Marketing from Elizabeth Bence trading as Duke College (Duke College) completed on 11 November 2016 and his Advanced Diploma of Management from Pacific College completed on 4 October 2015 are not closely related to his nominated occupation of Developer Programmer. A copy of the delegate’s decision was provided to the Tribunal.
Mr Upadhyay appeared before the Tribunal on 23 November 2017 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION…

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 UPADHYAY (Migration)

Details

AGLC: UPADHYAY (Migration) [2018] AATA 659
Case: [2018] AATA 659
Decision Date: 16 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Upadhyay, who sought to satisfy the primary criteria for a Subclass 485 (Temporary graduate) visa in the Graduate Work stream. The dispute centred on whether Mr Upadhyay met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Migration Regulations 1994, specifically concerning the Australian study requirement and the relationship between his qualifications and his nominated occupation.

The Tribunal was required to determine two key legal issues. Firstly, whether Mr Upadhyay satisfied the ‘Australian study requirement’ as defined by regulation 1.15F(1) of the Regulations, which involves completing registered courses in Australia over a specified period. Secondly, and crucially, the Tribunal had to ascertain whether each degree, diploma, or trade qualification relied upon to meet the Australian study requirement was closely related to his nominated skilled occupation of Developer Programmer, as stipulated by clause 485.222.

In its reasoning, the Tribunal examined the evidence presented, including Mr Upadhyay's Advanced Diploma of Marketing, Advanced Diploma of Management, and Advanced Diploma of Network Security, alongside a Diploma of Information Technology. While Mr Upadhyay's representative argued that his Advanced Diploma of Marketing was closely related to his nominated occupation, the Tribunal ultimately concluded that this was not the case. The Tribunal affirmed the decision under review, finding that the qualifications, particularly the Advanced Diploma of Marketing, were not sufficiently closely related to the nominated occupation of Developer Programmer to satisfy the visa criteria.

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 Mr Upadhyay 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: first, have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and second, 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 Mr Upadhyay meets those requirements. Prior to the hearing, Mr Upadhyay’s representative provided a detailed Submission addressing why he believes Mr Upadhyay’s Advanced Diploma of Marketing from Duke College is closely related to his nominated occupation of Developer Programmer. At the hearing, Mr Upadhyay provided a number of documents including, relevantly, Academic Transcripts confirming subjects completed for each of his: ·Advanced Diploma of Marketing from Duke College completed 11 November 2016;·Advanced Diploma of Management from Pacific College completed 4 October 2015; and, ·Advanced Diploma of Network Security from Pacific College completed 6 December 2013. After the hearing, Mr Upadhyay’s representative provided a further Submission as discussed below. 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: (a)that are registered courses; and,(b)that were completed in a total of at least 16 calendar months; and,(c)that were completed as a result of a total of at least 2 academic years study; and,(d)for which all instruction was conducted in English; and,(e)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 r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. The term ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award: r.1.15F(2) of the Regulations. For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000: IMMI 09/040. Mr Upadhyay’s representative has provided the Tribunal with evidence of his completing an Advanced Diploma of Marketing from Duke College, an Advanced Diploma of Management from Pacific College and an Advanced Diploma of Network Security from Pacific College. In addition, the Department’s file contains evidence of his completing a Diploma of Information Technology at Central College on 15 September 2012.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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