1502965 (Migration) - [2015] AATA 3270

1502965 (Migration) [2015] AATA 3270 (11 August 2015)
DECISION RECORD
DIVISION:  Migration & Refugee Division
APPLICANT:  Dr Omair Mehboob
MRT CASE NUMBER:  1502965
DIBP REFERENCE(S):  BCC2015/44629
TRIBUNAL MEMBER:  Mary-Ann Cooper
DATE:11 August 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 11 August 2015 at 4:59pm

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 18 February 2015 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 6 January 2015. 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.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian Study Requirement in the 6 months ending immediately before the day on which the visa application was made. The delegate found that the applicant’s Diploma of Business was not a qualification of a kind specified by the Minister in an instrument in writing and his Master of Pharmacy degree had been completed more than 6 months before the day the visa application was made.
4.The applicant appeared before the Tribunal on 2 June 2015 to give evidence and present arguments.
5.The applicant was represented in relation to the review and his representative appeared at the hearing by telephone.
6.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 Post-Study Work stream which includes cl.485.231 of Schedule 2 to the Regulations (attached). This requires that the applicant holds qualifications of a kind specified by the Minister in an instrument in writing (IMMI 13/013): cl.485.231(1); and that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (IMMI 13/031): cl.485.231(2). In addition, the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3). The issue in this case is whether the applicant meets cl.485.231(3).
The applicant has provided evidence that he completed a Master of Pharmacy at Charles Sturt University on 18 March 2014. Documents provided confirm that he also completed…

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 3270
Decision Date: 11 August 2015

CaseChat Overview and Summary

The matter of 1502965 (Migration) was before the Tribunal where the delegate had refused to grant the applicant a Skilled (Provisional) (Class VC) visa on the basis that the applicant did not satisfy the Australian Study Requirement as set out in cl.485.231 of Schedule 2 to the Regulations. The applicant appealed this decision and appeared before the Tribunal on 2 June 2015 to present evidence and arguments.

The Tribunal was required to decide whether the applicant satisfied cl.485.231(3) which requires that the applicant’s study for the qualification satisfied the Australian study requirement in the 6 months ending immediately before the day on which the visa application was made. The Tribunal found that the applicant’s Master of Pharmacy degree was not completed in the requisite timeframe and that his Diploma of Business did not satisfy cl.485.231 as it was not a qualification of a kind specified by the Minister. The Tribunal was not provided with the Department’s website which the applicant claimed had been misleading, but it noted that it most likely referred to the Australian study requirement in r.1.15F. The Tribunal concluded that the applicant did not satisfy cl.485.231(3) and, by extension, cl.485.231 as a whole.

The Tribunal found that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa and affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa. The Tribunal’s decision was based on its finding that the applicant did not satisfy the Australian study requirement in the 6 months ending immediately before the day on which the visa application was made.

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

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Evidence

Evidence Before The Court

The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian Study Requirement in the 6 months ending immediately before the day on which the visa application was made. The delegate found that the applicant’s Diploma of Business was not a qualification of a kind specified by the Minister in an instrument in writing and his Master of Pharmacy degree had been completed more than 6 months before the day the visa application was made. 4.The applicant appeared before the Tribunal on 2 June 2015 to give evidence and present arguments. 5.The applicant was represented in relation to the review and his representative appeared at the hearing by telephone. 6.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 Post-Study Work stream which includes cl.485.231 of Schedule 2 to the Regulations (attached). This requires that the applicant holds qualifications of a kind specified by the Minister in an instrument in writing (IMMI 13/013): cl.485.231(1); and that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (IMMI 13/031): cl.485.231(2). In addition, the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3). The issue in this case is whether the applicant meets cl.485.231(3). The applicant has provided evidence that he completed a Master of Pharmacy at Charles Sturt University on 18 March 2014. Documents provided confirm that he also completed a Diploma of Business from Technical Education Australia on 15 December 2014. As recorded in the delegate’s decision, a copy of which was provided with the review application, the delegate was not satisfied that the applicant met cl.485.231(3) because he did not complete his Master of Pharmacy, his relevantly specified qualification, in the period of 6 months ending immediately before the date of his application. At the hearing, the Tribunal noted that the applicant’s other qualification, the Diploma of Business was not one of the qualifications specified by the Minister in the relevant instrument IMMI 13/031 and therefore, it considered, it could not be used to satisfy the provisions cl.485.231. The applicant said that he had relied on the Department’s website which stated that a degree, diploma or trade qualification could be used to satisfy the Australian study requirement. He claimed that the website had referred to an example using a graduate diploma. On that basis, he said that he had been confident that his qualifications would meet the requirements, but he now considers the website had been misleading. The Tribunal did not have the website available to it at the time, but suggested that it most likely referred to the Australian study requirement in r.1.15F. It observed that the cl.485.231(1) limited the type of relevant qualifications for those applicants who had nominated the Post Study Work Stream.

Decision

Reasons for decision

Consequently the Tribunal finds that the applicant’s study for the qualification did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made. Therefore the applicant does not meet the requirements of cl.485.231(3),and, it follows, cl.485.231 as a whole. CONCLUSION27.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.DECISION28.The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Mary-Ann CooperMemberATTACHMENTMigration Regulations 1994485.23 Criteria for Post-Study Work streamNote: These criteria are only for applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Post-Study Work stream.….485.231(1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.(2) Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.(3) The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

Ratio Decidendi

Legal Principle Established

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