Yousaf (Migration) - [2020] AATA 3706

Yousaf (Migration) [2020] AATA 3706 (1 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Imran Yousaf
CASE NUMBER:  1731073
HOME AFFAIRS REFERENCE(S):          BCC2017/3251787
MEMBER:Jade Murphy
DATE:1 July 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 01 July 2020 at 12:08pm

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 November 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 7 September 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 visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualification used to satisfy the Australian study requirement, namely an Advanced diploma of Leadership and Management, is closely related to his nominated occupation of Painting Trades Worker (ANZSCO 332211).
The applicant appeared before the Tribunal on 1 July 2020 to give evidence and present arguments.
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 delegate refused the vis application on the basis that a qualification used to satisfy the Australian study requirement was not closely related to the applicant’s nominated skilled occupation so the issue in the present case is whether the applicant meets this requirement, pursuant to cl.485.222.
Is the qualification ‘closely related’ to the nominated occupation?
Clause 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…

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.

Keep reading for free

Create a free CaseChat account to read Yousaf (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 3706
Decision Date: 1 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr Yousaf for a Subclass 485 (Temporary Graduate) visa. Mr Yousaf sought to satisfy the primary criteria for this visa, specifically the Graduate Work stream, which requires the applicant to have met the 'Australian study requirement' within the six months preceding their visa application and for each qualification used to meet this requirement to be 'closely related' to their nominated skilled occupation. The delegate had refused the visa application on the grounds that the applicant's qualification was not closely related to their nominated occupation.

The central legal issue before the Tribunal was whether the applicant's Advanced Diploma of Leadership and Management was 'closely related' to their nominated skilled occupation of Painting Trades Worker (ANZSCO 332211), as required by clause 485.222 of Schedule 2 to the Migration Regulations. The Tribunal had to determine if the qualification met the definition of being closely related to the nominated occupation, considering the ANZSCO description for Painting Trades Worker.

The Tribunal reasoned that for a qualification to be considered 'closely related' to a nominated skilled occupation, it must have a direct and relevant connection to the skills and duties of that occupation. The Tribunal noted that the ANZSCO description for Painting Trades Worker did not include any leadership or management-related skills. While acknowledging that a qualification in leadership and management might be beneficial for future career plans, such as starting a business, the Tribunal found that this potential benefit was insufficient to establish that the qualification was 'closely related' to the nominated occupation itself. Therefore, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa.

The Tribunal affirmed the delegate's decision not to grant Mr Yousaf a Skilled (Provisional) (Class VC) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 delegate refused the vis application on the basis that a qualification used to satisfy the Australian study requirement was not closely related to the applicant’s nominated skilled occupation so the issue in the present case is whether the applicant meets this requirement, pursuant to cl.485.222.Is the qualification ‘closely related’ to the nominated occupation? Clause 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). The relevant instrument for this purpose is Legislative Instrument IMMI 17/072. In this case, the applicant nominated the occupation of Painting Trades Worker (332211) which is a skilled occupation specified in IMMI 17/072. The delegate’s decision (and confirmed by the applicant at hearing) sets out the applicant’s study history as follows:·Certificate III in Painting and Decorating - completed 25 August 2013·Diploma of Building and Construction (Management) –completed 30 August 2014·Advanced Diploma of Leadership and Management – completed 9 July 2017 As set out in the delegate’s decision, the applicant’s Advanced Diploma of Leadership and Management is required to satisfy the Australian study qualification in cl.485.221, and therefore must be deemed to be ‘closely related’ to the applicant’s nominated occupation. The delegate refused this application because they did not consider that an Advanced Diploma of Leadership and Management was closely related to the nominated occupation of Painting Trades Worker. The delegate also looked at the ANZSCO description of Painting Trades Worker (and reproduced that description in the decision) and noted it did not contain any leadership and management related skills as benefiting the occupation. The delegate stated that although an Advanced Diploma of Leadership and Management could be capable of assisting in a future career plan, this was not enough to satisfy the delegate that it was closely related.

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.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.