Rai (Migration)

[2020] AATA 2585

Rai (Migration) [2020] AATA 2585 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Inderpreet Singh Rai
Mrs Rajvir Kaur

CASE NUMBER:  1724791

HOME AFFAIRS REFERENCE(S):          BCC2017/2688274

MEMBER:Jade Murphy

DATE:16 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 16 April 2020 at 12:15pm

CATCHWORDS
MIGRATION – Subclass 485 Skilled (Provisional) visa – Graduate Work stream – Australian study requirement not met – qualification was not closely related to the nominated occupation – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, Schedule 2, cls 485.211, 485.222
Education Services for Overseas Students Act 2000

CASES
Pasula v MIAC [2010] FMCA 219

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 September 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 July 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 1 applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s Diploma of Business used to satisfy the Australian Study Requirement is closely related to the applicant’s nominated occupation of Metal Fabricator (ANZSCO 322311).

4. The applicant appeared before the Tribunal on 9 April 2020 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. 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.

   Does the applicant meet the Australian study requirement?

7. 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:

   ·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 of 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.

8. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, 1 ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.

9. As set out in the delegate’s decision, and evidenced by academic transcript, the applicant completed the following qualifications:

   ·Certificate III in Engineering (Fabrication Trade) at Baxter Institute – commenced 23 April 2015, completed 5 June 2016;

   ·Certificate IV in Engineering at Baxter Institute – commenced 1 July 2016, completed 5 December 2016;

   ·Diploma of Business at Acumen Education – commenced 14 February 2017, completed 22 July 2017.

10. Together, the 3 courses were completed within the 6 months immediately before the day the application was made as the applicant’s Diploma of Business was completed on 22 July 2017 and the applicant applied for this visa on 28 July 2017.

11. All 3 qualifications further satisfy the Australian Study Requirement as they are registered courses completed at a CRICOS registered institution (CRICOS codes 03090B and 02233M respectively).

12. The qualifications together were completed in a total of at least 16 calendar months and as the result of at least 2 academic years of study.

13. The completion certificates issued from the education providers further confirm that each qualification was conducted in English.

14. In addition, departmental checks confirm the applicant held the relevant student visa authorising study at the relevant times.

15. Based on the above, the Tribunal finds that the applicant satisfied the Australian Study Requirement in the 6 months immediately preceding the date of the visa application.

16. Therefore, the applicant meets cl.485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

17. In addition, cl.485.222 requires the qualification used to satisfy the 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 IMMI17/072.

18. In this case, the applicant nominated the occupation of Metal Fabricator (ANZSCO 322311), which is a skilled occupation specified in IMMI17/072.

19. As set out in the delegate’s decision, the delegate did not consider that a Diploma of Business was closely related to the nominated occupation of Metal Fabricator. The delegate looked at the applicant’s academic transcript and found there was no relationship between the units completed and the nominated occupation.

20. The delegate noted the ANZSCO description of Metal Fabricator (and reproduced that description in their decision) and noted it did not contain any business related activities. The delegate acknowledged that although a Diploma of Business could be capable of assisting in a future career plan such as owning a business, this was not enough to satisfy the delegate that it was closely related.

21. At hearing, the applicant was asked whether he would like to respond to the delegate’s concerns in this regard.

22. The applicant responded that after completing his Certificate III and Certificate IV, he sought migration advice for his application for a Subclass 485 visa and was advised that he did not meet the requirement to have studied for at least 2 years. The applicant told the Tribunal that “there is no relevant study after a Certificate III and Certificate IV in the same field.” The applicant stated that he intends to own his own business in the future so he decided to continue studying by undertaking his Diploma of Business to fulfill the requirement to study for at least 2 years.

23. The Tribunal told the applicant that it shared the delegate’s concern that although it is noted that a Diploma of Business may be capable of assisting him in his future career plan of opening his own business one day, that may not be enough to satisfy the Tribunal that it is closely related to his current nominated occupation of Metal Fabricator.

24. The applicant replied that there is no other qualification related to Fabrication after the Certificate III and IV.

25. The Tribunal acknowledges the applicant’s submissions that he partly undertook the Diploma of Business because he wants to own his own business. However, it considers that the assessment of whether or not it is ‘closely related’ must be against the nominated occupation and not against an occupation that the applicant wants to engage in in the future. As Smith FM stated in Pasula v MIAC [2010] FMCA 219 at [23]:

    the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the

    regulations must relate to the nominated occupation itself, and not to some different

    occupational classification which might later be pursued by the visa applicant, and

    which would then involve use of the two qualifications. If PAM3 suggested otherwise,

    then it would be giving advice flawed by error of law.

26. While that case considered a different provision, the Tribunal finds that the same reasoning applies in relation to cl.485.222.

27. In the Tribunal’s view, if the applicant decides to run his own business, this goes further than his nominated occupation of Metal Fabricator. The Tribunal cannot consider the qualification in relation to the applicant’s future or intended occupations, rather than the nominated occupation.

28. The Tribunal considers this a crucial point that carries no favourable weight for the applicant.

29. Regarding the applicant’s submission that he only studied the Diploma of Business to make up the 2 years of study and that there are no relevant courses connected to his nominated occupation, the Tribunal does rejects that this demonstrates that the Diploma of Business is closely related to his nominated occupation. The Tribunal considers this submission tends to acknowledge that the Diploma of Business is not relevant to his selected trade, or nominated occupation. The Tribunal considers this submission also carries no favourable weight for the applicant.

30. Based on the above, having considered the evidence and submissions presented, as well as having regard to the ANZSCO definition[1] (albeit a general and flexible approach considering all attached groups and sub groups), the Tribunal is not persuaded that the applicant’s Diploma of Business is closely related to his nominated occupation of Metal Fabricator.

    [1] As required by Talha v MIBP [2015] FCAFC 115.

31. As the applicant’s qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

32. 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.

33. As the first named applicant does not meet the criteria for the grant of a Subclass 485 visa, the second named applicant cannot meet the criteria in cl.485.311.

    DECISION

34. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Jade Murphy
    Member