1420030 (Migration) - [2015] AATA 3195

1420030 (Migration) [2015] AATA 3195 (17 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mai Tuan Bui Minh
MRT CASE NUMBER:  1420030
DIBP REFERENCE(S):  bcc2014/1950787
TRIBUNAL MEMBER:  Mary-Ann Cooper
DATE:17 July 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 17 July 2015 at 4:07pm

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 on 28 November 2014 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
2.The applicant applied for the visa on 8 August 2014. 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.485.221of Schedule 2 to the Regulations because the Australian study requirement was not satisfied (r.1.15F).
The applicant appeared by telephone before the Tribunal on 2 June 2015 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6.A threshold issue arises in this application in relation to whether the applicant had effectively withdrawn this visa application before the delegate had made her decision. The applicant has requested the Tribunal make its decision ‘solely on whether the decision made by the Department of Immigration and Border Protection to refuse the withdrawal request of my visa application was correct or not.’
7.At the hearing the applicant maintained that he had withdrawn the application and the making of the decision was unfair because he would now have a ‘refusal record’ and would be subject to a bar on a further onshore visa application. He drew the Tribunal’s attention to his email to the Department on 27 November 2014, as on the Department’s file, in which he states “Yes, I would like to withdraw my application.” The delegate however proceeded to make her decision, the subject of this application, on 28 November 2014.
8.On a closer analysis of the Department’s file and the communications between the delegate and the applicant on this issue, of which there are many, the Tribunal notes that, notwithstanding the applicant’s express indication that he wished to withdraw his application, in the same email he later states “Therefore I would like to kindly ask that whether you can finalise my withdrawal once…

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.

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Details

Case: [2015] AATA 3195
Decision Date: 17 July 2015

CaseChat Overview and Summary

In the case of 1420030 (Migration), the applicant sought a review of the decision to refuse a visa application for a Subclass 485 visa in the Graduate Work stream. The dispute centred around whether the applicant had effectively withdrawn his application before the delegate made a decision, and whether he met the Australian study requirement for the visa. The matter was heard by the Tribunal on 2 June 2015, with the applicant presenting evidence and arguments by telephone.

The primary legal issues were whether the applicant had properly withdrawn his visa application before the decision was made, and whether he had satisfied the Australian study requirement in the six months immediately preceding the application. The latter issue hinged on whether the applicant completed his Bachelor of Science (Actuarial Science) degree within the requisite timeframe. The Tribunal had to consider the applicant’s communications with the Department, the date on which Curtin University determined that he had completed his degree, and the statutory requirements for completing an Australian qualification.

The Tribunal concluded that the applicant had not effectively withdrawn his application, as his request was ambiguous and he had not definitively confirmed the withdrawal before the decision was made. Regarding the Australian study requirement, the Tribunal found that the applicant did not complete his degree within the six-month period immediately preceding the visa application, as he finished his degree on 10 December 2013, and the application was made on 8 August 2014. The Tribunal relied on the definition of 'completed' in the Regulations, which focuses on the date the institution determines that academic requirements have been met, not the date the applicant receives the results.

The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, as he did not meet the mandatory requirement of having completed an Australian qualification within the requisite timeframe.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared by telephone before the Tribunal on 2 June 2015 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 EVIDENCE6.A threshold issue arises in this application in relation to whether the applicant had effectively withdrawn this visa application before the delegate had made her decision. The applicant has requested the Tribunal make its decision ‘solely on whether the decision made by the Department of Immigration and Border Protection to refuse the withdrawal request of my visa application was correct or not.’ 7.At the hearing the applicant maintained that he had withdrawn the application and the making of the decision was unfair because he would now have a ‘refusal record’ and would be subject to a bar on a further onshore visa application. He drew the Tribunal’s attention to his email to the Department on 27 November 2014, as on the Department’s file, in which he states “Yes, I would like to withdraw my application.” The delegate however proceeded to make her decision, the subject of this application, on 28 November 2014.8.On a closer analysis of the Department’s file and the communications between the delegate and the applicant on this issue, of which there are many, the Tribunal notes that, notwithstanding the applicant’s express indication that he wished to withdraw his application, in the same email he later states “Therefore I would like to kindly ask that whether you can finalise my withdrawal once I could confirm that I have not failed any units at Macquarie University.”9.Following another email from the applicant on the morning of 28 November 2014, the delegate responded as follows:“You had been advised a decision as going to be made on your application. I asked you to send in your withdrawal request, which you said yesterday you would do. I advised you yesterday in our phone conversation that any issues regarding your exam results would need to be taken up with the University as the application was not going to be held.The email you sent on 27/11/14 did state that you wanted to withdraw your application, however you stated “I would like to kindly ask you that whether you can finalise my withdrawal once I could confirm that I have not failed any units at Macquarie University.”As previously stated the application was not going to be held for you to withdraw the application so a decision was made.”10.Although the Tribunal has some sympathy for the applicant’s situation, it considers that his purported withdrawal of his application on 27 November 2014 was ambiguous insofar as he also appeared asked the delegate to delay action on the withdrawal until he had received his university results. Other communications on the Department’s file confirm that the applicant was provided with a natural justice letter and given several opportunities to confirm his withdrawal. On 26 November 2014 he was advised that a decision would be made. In the circumstances the Tribunal does not consider that there is any error of the delegate over which it has jurisdiction or that goes to its jurisdiction to review this application. The Tribunal has therefore proceeded to determine the substantive issue before it. 11.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.Does the applicant meet the Australian study requirement?12.The issue in this case is when the applicant completed his Bachelor of Science (Actuarial Science) degree, and whether that occurred ”in the period of 6 months immediately before the day the application was made” as required by cl.485.221. 13.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.14.‘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, ‘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).Did the applicant complete a degree, diploma or other trade qualification (as defined: see r.2.26AC(6)) in the 6 months immediately before the application was made ? 15.As noted above, clause 485.221 requires that the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made. Having regard to the material on the Department’s file, the requirements in Schedule 1 item 1229, and regulation 2.10C regarding the time at which an Internet application is taken to have been made, the Tribunal finds that the visa application was made on 8 August 2014, as recorded in the delegate’s decision, a copy of which was provided with the application for review. 16.Clause 485.221 therefore requires that the applicant must have satisfied the Australian study requirement in the 6 month period ending immediately before 8 August 2014. The applicant has stated in his visa application form that he completed a Bachelor of Science (Actuarial Science) from Curtin University in Western Australia between the period 11 July 2011 and 10 December 2013. This is confirmed by documents from the University on the Department’s file which state that the applicant completed this qualification on 10 December 2013. 17.The meaning of ‘completed’ in r.1.15F(1)(b) in relation to the ‘2 year study requirement’/‘Australian study requirement’ was addressed in the Federal Court decision in Sapkota v Minister for Immigration and Citizenship, [2012] FCA 981 (7 September 2012), which held that a course is completed when the institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution. At paragraphs 26-7 of that decision Cowdroy J said:Given that a decision as to whether a student has satisfied the requirements of a course is entirely a matter for the education institution, the point at which the student actually learns of the result, or the date when the education institution informs the student via letter, email or otherwise of the student’s results is not relevant for determining the date when a student has completed the academic requirements. The relevant date is the date when the education institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution. …….In these proceedings, a letter from Holmes Institute states that the appellant completed the course on 28 September 2008. This letter clearly shows that this was the date at which the university determined that it was satisfied that the appellant had completed the course requirements. This is the date upon which the six calendar month period for filing a visa application commences.18.Having taken into account the evidence and submissions of the applicant and considering the relevant authorities, the Tribunal finds, on the basis of the documents from Curtin University, that the applicant completed, within the meaning of the Regulations, his Bachelor of Science (Actuarial Science) on 10 December 2013. This was the date, according to the university, at which it determined that it was satisfied that the appellant had completed the course requirements. This is therefore the date upon which the six calendar month period for filing the visa application commences. 19.In this context, as this visa application was not made until 8 August 2014, the Tribunal is not satisfied that the applicant met the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made. 20.The applicant has otherwise provided no evidence of having completed any relevant qualification in the 6 month period ending immediately before he made the visa application on 8 August 2014, either to the Department or to the Tribunal.21.Consequently the Tribunal finds that the applicant did not satisfy the Australian study requirement in the period of 6 months immediately preceding the date of the visa application. Therefore the applicant does not meet the requirements of cl.485.221. 22.As the Tribunal has found that the applicant does not meet the requirements of cl.485.221, and as this is a mandatory requirement for the grant of the Subclass 485 visa, it is unnecessary for the Tribunal to also consider the other criterion.CONCLUSION23.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.DECISION24.The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Mary-Ann CooperMember

Decision

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Ratio Decidendi

Legal Principle Established

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