Vishal Deep (Migration) - [2020] AATA 1463

Vishal Deep (Migration) [2020] AATA 1463 (23 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vishal Deep
CASE NUMBER:  1829698
HOME AFFAIRS REFERENCE(S):          BCC2008/138102
MEMBER:Antonio Dronjic
DATE:23 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 23 April 2020 at 12:38pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Skilled – Graduate) –study requirements – study closely related to nominated occupation – comparison of study and ANZSCO specifications – not working in nominate occupation – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cl 485.213(b)
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
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 Home Affairs on 21 September 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958.
The applicant applied for the visa on 30 December 2008. At the time the visa application was lodged, Class VC contained two subclasses, 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
BACKGROUND
On 30 December 2008, the applicant applied for a Skilled Graduate (subclass 485) visa. On 12 October 2012, the Department refused the application as the applicant was unable to satisfy public interest criterion (PIC) 4020. The delegate found that there was evidence before the Minister that the applicant had given, or caused to be given, a bogus document; specifically, the TRA skills assessment submitted to the Department on 2 February 2009.
The applicant sought review in the then Migration Review Tribunal (MRT) and on 29 April 2015, the MRT affirmed the decision of the Department.
On or around 1 June 2015, the applicant sought review of that decision in the Federal Circuit Court and on 6 July 2017, the matter was remitted back to the Administrative Appeals Tribunal (the Tribunal) by consent orders on the basis that the Tribunal failed to disclose the existence of an s.376 certificate to the applicant.
On 30 June 2018, the Tribunal decided to waive the PIC 4020(1) and remitted the primary decision for reconsideration.
On 21 September 2018, the delegate again refused to grant the visa to the applicant on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant’s Diploma of Business was closely related to the nominated occupation of pastry cook (ANZSCO 3511).
The Tribunal notes that the delegate refused the application applying the Regulations that were in force at 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.

Continue reading Vishal Deep (Migration)

Details

AGLC: Vishal Deep (Migration) [2020] AATA 1463
Case: [2020] AATA 1463
Decision Date: 23 April 2020

CaseChat Overview and Summary

This matter concerned an application for a Skilled Graduate (subclass 485) visa by Vishal Deep. The applicant sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the delegate's refusal to grant the visa. The primary issue before the Tribunal was whether the applicant met the study requirements for the visa, specifically that his qualifications were closely related to his nominated occupation.

The Tribunal was required to determine whether the applicant satisfied the '2-year study requirement' as prescribed by clause 485.213(a) of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant's completed courses, namely a Certificate III in Food Processing (Retail Baking - Cake and Pastry) and a Diploma of Business Management, were sufficient in duration and closely related to the nominated occupation of pastry cook (ANZSCO 3511).

The Tribunal reasoned that to satisfy the 2-year study requirement, a total of at least 16 calendar months of study, comprising at least 2 academic years, was necessary. While the applicant had completed a Certificate III in Food Processing and a Diploma of Business Management, the Tribunal found that the Diploma of Business Management alone, being 48 weeks in duration, did not meet the minimum requirement of 2 academic years of study. Furthermore, the Tribunal concluded that the Diploma of Business Management was not closely related to the nominated occupation of pastry cook. Consequently, the applicant failed to satisfy the criteria for the grant of 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

The applicant applied for the visa on 30 December 2008. At the time the visa application was lodged, Class VC contained two subclasses, 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations).BACKGROUND On 30 December 2008, the applicant applied for a Skilled Graduate (subclass 485) visa. On 12 October 2012, the Department refused the application as the applicant was unable to satisfy public interest criterion (PIC) 4020. The delegate found that there was evidence before the Minister that the applicant had given, or caused to be given, a bogus document; specifically, the TRA skills assessment submitted to the Department on 2 February 2009. The applicant sought review in the then Migration Review Tribunal (MRT) and on 29 April 2015, the MRT affirmed the decision of the Department. On or around 1 June 2015, the applicant sought review of that decision in the Federal Circuit Court and on 6 July 2017, the matter was remitted back to the Administrative Appeals Tribunal (the Tribunal) by consent orders on the basis that the Tribunal failed to disclose the existence of an s.376 certificate to the applicant. On 30 June 2018, the Tribunal decided to waive the PIC 4020(1) and remitted the primary decision for reconsideration. On 21 September 2018, the delegate again refused to grant the visa to the applicant on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant’s Diploma of Business was closely related to the nominated occupation of pastry cook (ANZSCO 3511). The Tribunal notes that the delegate refused the application applying the Regulations that were in force at the time of the delegate’s decision. The applicable version of the Regulations is one in force at the time of visa application i.e. 20 December 2008. Clause 458.222 relied on by the delegate applies only to visa applications made on or after 23 March 2013. Accordingly, the Tribunal is satisfied that the relevant clause is cl.485.213 which prescribes:485.213The following requirements are met:(a) the applicant satisfied the 2-year study requirement in the period of 6 months ending immediately before the day on which the application was made;(b) each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant’s nominated skilled occupation. The applicant completed the following courses in Australia:·Certificate III in Food Processing (Retail Baking - Cake and Pastry) registered on the Provider Registration and International Student Management System (PRISMS) website as 48 weeks in duration. This course was completed at Della International College between 13 November 2006 and 22 February 2008; and·Diploma of Business Management registered on PRISMS website as 48 weeks in duration. This course was also completed at Della International College between 25 February 2008 and 7 November 2008.

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 primary criteria for the grant of a Subclass 485 visa include a two-pronged requirement that the applicant satisfies a ‘2-year study requirement’, on the basis of qualifications that are closely related to the occupation the applicant has nominated for the visa (cl.485.213). The issue in the present case is whether the applicant meets that requirement.Has the applicant satisfied the 2-year study requirement? Clause 485.213(a) requires that the applicant satisfied the ‘2-year study requirement’ in the 6 months immediately preceding the visa application date. Under r.1.15F(1) of the Regulations, a person satisfies the ‘2 year 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. ‘Degree’, ‘diploma’, ‘trade qualification’ and ‘registered course’ are all defined terms (see rr.1.03, 1.15F and 2.26A(6), and cl.485.111). For visa applications made on or after 26 April 2008, ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). The applicant is seeking to rely on the Diploma of Business Management, which was completed on 7 November 2008, to meet the 2-year study requirement. That is, a course that he completed in the 6 months before the visa application was made on 30 December 2008. According to the applicant’s submissions of 8 April 2020 and the PRISMS website, the Diploma of Business Management the applicant completed at Della International College was registered for 48 weeks’ duration and all instruction was in English. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study – that is, at least 92 weeks of study consistent with the relevant instrument – the Tribunal finds that, relying on his Diploma of Business Management alone, the applicant does not satisfy the 2-year study requirement in the 6 months immediately preceding the day his Subclass 485 visa application was made on 30 December 2008 as required by cl.485.213(a) of Schedule 2 to the Regulations. The 2-year study requirement does not require visa applicants to have completed a single course of study of 2 academic years’ duration. Accordingly, it is necessary to consider whether the applicant can rely on all the courses he completed in Australia to meet the 2-year study requirement.

Decision

Reasons for decision

Based on 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.Antonio DronjicMemberAnnexure AUNIT GROUP 3511 BAKERS AND PASTRYCOOKS BAKERS AND PASTRYCOOKS prepare and bake bread loaves and rolls, buns, cakes, biscuits and pastry goods. Indicative Skill Level:Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below. In Australia: AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)In New Zealand: NZQF Level 4 qualification (ANZSCO Skill Level 3)At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Tasks Include: ochecking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations ochecking the quality of raw materials and weighing ingredients okneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods opreparing pastry fillings omonitoring oven temperatures and product appearance to determine baking times ocoordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products oglazing buns and pastries, and decorating cakes with cream and icing ooperating machines which roll and mould dough and cut biscuits oemptying, cleaning and greasing baking trays, tins and other cooking equipmentOccupations: 351111 Baker 351112 Pastrycook351111 BAKER Prepares and bakes bread loaves and rolls. Skill Level: 3 Specialisation: Doughmaker351112 PASTRYCOOK Prepares and bakes buns, cakes, biscuits and pastry goods. Skill Level: 3 Specialisation: Cake DecoratorAnnexure BMINOR GROUP 351 FOOD TRADES WORKERS FOOD TRADES WORKERS bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments. Indicative Skill Level:Most occupations in this minor group have a level of skill commensurate with the qualifications and experience outlined below.In Australia: AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2); orAQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV, or at least three years of relevant experience (ANZSCO Skill Level 3)In New Zealand: NZQF Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2); orNZQF Level 4 qualification, or at least three years of relevant experience (ANZSCO Skill Level 3); orNZQF Level 2 or 3 qualification, or at least one year of relevant experience (ANZSCO Skill Level 4)In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Tasks Include: ochecking the cleanliness and operation of equipment and premises before production runs to ensure compliance with occupational health and safety regulations oplanning menus, estimating food and labour costs, and ordering food supplies omonitoring quality of food at all stages of preparation and presentation opreparing meat for sale and baking bread, cakes and pastries opreparing food and cooking using ovens, hotplates, grills and similar equipment oportioning food, placing it in dishes, and adding gravies, sauces and garnishes

Ratio Decidendi

Legal Principle Established

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