1513809 (Migration) - [2016] AATA 4511

1513809 (Migration) [2016] AATA 4511 (12 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Thi Minh Nguyen
Mr Rajak Apdul
CASE NUMBER:  1513809
DIBP REFERENCE(S):  BCC2015/1867037
MEMBER:Antonio Dronjic
DATE:12 October 2016
PLACE OF DECISION:  Melbourne
DECISION:The tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 12 October 2016 at 4:54pm

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 on 24 September 2015 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 29 June 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 visas because the first named applicant (the applicant) did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate found that the applicant lodged her application for a subclass 485 visa before she satisfied the Australian study requirement.
The applicants applied to the tribunal on 12 October 2015 for review of the delegate’s decision. With the application they submitted a copy of the primary decision record dated 24 September 2015.
On 1 September 2016, the tribunal wrote to the applicants advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the hearing on 22 September 2016.
The first named applicant appeared before the tribunal on 22 September 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.
At the commencement of the hearing, the applicants’ representative provided legal submissions arguing that the applicant’s results related to the final exam were released on the University student portal on 21 June 2016. It was conceded in the submissions that the date of issue of the Statement of Results by the Victoria University is 29 June 2015. The representative referred the tribunal to a decision in Sapkota v MIAC [2012] FCA 981, where the Federal Court 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.
The representative submitted the following documents:
·Copy of the applicant’s Academic Transcript issued by the Victoria University dated 29 June 2015;
·Copy e-mail from Victoria University International…

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: [2016] AATA 4511
Decision Date: 12 October 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. The central dispute revolved around whether the applicant met the 'Australian study requirement', which mandates completion of a course within the six months immediately preceding the visa application date.

The tribunal was required to determine the precise date on which the applicant completed her Master's Degree, as this date was critical for assessing compliance with the six-month timeframe stipulated by clause 485.221 of Schedule 2 to the Regulations. The applicant contended she met the requirement, while the decision under review had found otherwise.

In its reasoning, the tribunal applied the principle established in *Sapkota v MIAC* [2012] FCA 981, which holds that the completion date of a course is the date on which the educational institution finalises the academic results and is satisfied that the requirements have been met, rather than the date the student is informed of the outcome. The tribunal found, based on documentary evidence including a letter from Victoria University, that the applicant completed her Master's Degree on 29 June 2015. However, the tribunal also noted that the applicant lodged her visa application on the same day, 29 June 2015. This meant the applicant did not satisfy the Australian study requirement in the six months *immediately before* the day the visa application was made.

Consequently, the tribunal affirmed the decision not to grant the applicant a Subclass 485 visa.

Orders

Orders of the court

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Background

Background to the litigation

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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 of Schedule 2 to the Regulations. This require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl.485.221). The issue in the present case is whether the applicant meets this requirement. Based on the Academic Transcript from Victoria University provided by the applicant with her review application, applicant’s submissions of 6 October 2016, letter from Victoria University dated 3 October 2016 stating that the applicant completed her Master’s Degree and was eligible to graduate on 29 June 2015 and e-mail from Victoria University International Enrolment Team, dated 20 September 2016 confirming that the official results release date was 29 June 2015 and that ‘student would have been able to access this result on 29 June 2015, I find that the applicant completed her Masters’ Degree on 29 June 2015. I considered the decision in Sapkota v MIAC [2012] FCA 981 where the court held that the relevant date for determining when a student has completed the course 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. Cowdroy J at paragraph 26 stated:‘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. After this date a student would be able to contact the education institution to find out whether they had satisfied the necessary requirements’. In this case, documentary evidence referred to in paragraph 22 of this decision, including the letter from the education provider stating the applicant completed the course on 29 June 2015 clearly showed that this was the date at which the university was satisfied the applicant had completed the course requirements. Based on the departmental records and oral evidence given by the applicant at the hearing, the tribunal finds that the applicant lodged the application for a subclass 485 visa on 29 June 2015 being the same day when she completed her Masters’ course. As stated above, cl.485.221 of Schedule 2 to the Regulations require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day (emphasis added) the visa application was made.

Decision

Reasons for decision

I considered the applicants’ case and Minister’s guidelines on ministerial powers. I am satisfied that that this case exhibits unique or exceptional circumstances and will refer the matter to the department. DECISION The tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.Antonio DronjicMember

Ratio Decidendi

Legal Principle Established

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