Ali (Migration) - [2022] AATA 4300

Ali (Migration) [2022] AATA 4300 (29 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jahanzeb Ali
CASE NUMBER:  2118525
HOME AFFAIRS REFERENCE(S):          BCC2018/922017
MEMBER:Alison Mercer
DATE:29 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a subclass 485 visa:
·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 29 November 2022 at 10:38am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Federal Court remittal – post-study work stream – Australian study requirement within 6 months before making visa application – letter of completion dated after application made – academic requirements completed when necessary results achieved, not after purely administrative steps taken – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.15F(1), 2.26A, Schedule 2, cl 485.231(3)
CASES
Ali v MICMSMA [2021] FCA 1311
Mahohoma v MICSMMA [2020] FCCA 2206
Venkatesan v Minister for Immigration [2008] FMCA 409

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 Home Affairs on 23 March 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 February 2018. Visa Class VC contains subclass 485 (Temporary Graduate). The criteria for the grant of a subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations, which required that he met the Australian study requirement (as defined in r.1.15F of the Regulations) in the 3 years immediately before he made his visa application. The delegate found that the applicant’s letter of completion from Edith Cowan University (ECU) dated 8 March 2018 stated that the completion date for the applicant’s Master of Engineering degree was 5 March 2018, after his visa application was made on 26 February 2018.
The Tribunal received a review application from the applicant on 27 March 2018. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Kamaldeep Kaur Gill, as his representative and authorised recipient for correspondence. Subsequently, he terminated this authority and appointed himself as authorised recipient for correspondence in December 2021.
The Tribunal conducted a hearing on 5 July 2019, and on the same date, made a decision to affirm the Department’s refusal decision. In doing so, it found that cl.485.231 was…

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: [2022] AATA 4300
Decision Date: 29 November 2022

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate), post-study work stream. The applicant sought review of a decision that had not been made in accordance with the law. The Tribunal was required to determine whether the applicant met the requirements of clause 485.231 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue was whether the applicant had satisfied the "Australian study requirement" within the six months immediately preceding the visa application. This involved determining when the applicant's academic requirements for their Master's degree in Engineering were considered to have been met, given that the letter of completion was dated after the visa application was lodged. The Tribunal also considered whether the applicant held a specified qualification conferred by a specified educational institution.

The Tribunal reasoned that the definition of "completed" in relation to a qualification, as per regulation 1.15F(2), refers to having met the academic requirements for its award. It found that the applicant had met these academic requirements when they achieved the necessary results, not after administrative steps such as the issuance of a formal letter of completion. As the applicant's qualification was conferred by a specified institution and met the criteria for the Australian study requirement, the Tribunal concluded that clause 485.231 was satisfied.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the applicant met the criterion specified in clause 485.231.

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 matter should be remitted for reconsideration.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.Does the applicant hold a specified qualification? Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds a Master’s degree in Engineering which is a qualification specified in that instrument. Accordingly, the Tribunal finds that cl 485.231(1) is met.Was the applicant’s qualification conferred or awarded by a specified educational institution? Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031. In this case, the applicant’s qualification was conferred or awarded by ECU, which is an educational institution specified in that instrument. Accordingly, the Tribunal finds that cl 485.231(2) is met.Does the applicant meet the Australian study requirement? Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. Under reg 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, ·that were completed in a total of at least 16 calendar months,·that were completed as a result of a total of at least 2 academic years study,·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. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 1.15F(2)). For the purposes of this case, one ‘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: IMMI 09/040.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets cl 485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a subclass 485 visa:·cl 485.231 of Schedule 2 to the Regulations.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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