Zhang (Migration) - [2018] AATA 5126

Zhang (Migration) [2018] AATA 5126 (18 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Weidong Zhang
CASE NUMBER:  1701338
HOME AFFAIRS REFERENCE(S):           BCC2016/4034434
MEMBER:Kira Raif
DATE:18 December 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 18 December 2018 at 10:08am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Australian study requirement – Accountant (General) ANZSCO 221111 – Diploma of Interpreting and the Advanced Diploma of Translating completed six months before application date – qualification not closely related to his nominated occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65,
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222
CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
Walia v MIBP [2015] FCCA 1949
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 and Border Protection on 9 January 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 is a national of China born in April 1990. The applicant applied for the visa on 30 November 2016. 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 qualifications on which the applicant relied to meet the Australian study requirement were closely related to his nominated occupation. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 18 December 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
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.
Is the qualification ‘closely related’ to the nominated occupation?
The applicant stated in his application that he completed the following study
08/12   Diploma of Commerce
10/15   Bachelor of Commerce
09/16   Diploma of Interpreting
10/16   Advanced Diploma of Translating
The applicant had nominated the occupation of Accountant (General) ANZSCO 221111 in his application and provided a skills assessment with the application, as well as evidence of his study.
The applicant made the application for the visa in November 2016. The Tribunal finds that the only qualifications 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 Zhang (Migration)

Details

AGLC: Zhang (Migration) [2018] AATA 5126
Case: [2018] AATA 5126
Decision Date: 18 December 2018

CaseChat Overview and Summary

The applicant, Mr Zhang, sought review of a decision not to grant him a Skilled (Provisional) (Class VC) visa, specifically under the Graduate Work stream. The dispute centred on whether Mr Zhang met the Australian study requirement for this visa subclass, given his completed qualifications and nominated occupation. The decision was made by Senior Member Kira Raif of the Tribunal.

The primary legal issue before the Tribunal was whether Mr Zhang's qualifications, namely a Diploma of Interpreting and an Advanced Diploma of Translating, were sufficiently closely related to his nominated occupation of Accountant (General) (ANZSCO 221111) to satisfy the Australian study requirement for the Subclass 485 visa.

The Tribunal found that the applicant's completed qualifications were not closely related to his nominated occupation as an accountant. Consequently, Mr Zhang did not satisfy the criteria for the grant of the visa. The Tribunal affirmed the decision not to grant the applicant 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

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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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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