Chan (Migration) - [2017] AATA 707

Chan (Migration) [2017] AATA 707 (3 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Pak Hong Chan
CASE NUMBER:  1512239
DIBP REFERENCE(S):  BCC2015/1653344
MEMBER:D. Dimitriadis
DATE:3 May 2017
PLACE OF DECISION:  Sydney
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.485.221 of Schedule 2 to the Regulations

Statement made on 03 May 2017 at 5:12pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – Accountant (General) – Course completed within 6 months preceding visa application date

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.221, cl 485.222
CASES
Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
Griffith University v Tang (2005) 221 CLR 99
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 26 August 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 June 2015. Visa Class VC contains Subclass 485. 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.485.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.
The applicant appeared before the Tribunal on 18 April 2017 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 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 the requirements in cl.485.221.
The applicant applied for the visa and nominated the skilled occupation of Accountant (General). The applicant stated in the visa application that he has met the two year…

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: [2017] AATA 707
Decision Date: 3 May 2017

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream, by an applicant who nominated the occupation of Accountant (General). The applicant sought to satisfy the primary criteria for the visa, specifically clause 485.221 of Schedule 2 to the Regulations, which requires that the applicant must have satisfied the ‘Australian study requirement’ in the six months immediately preceding the day the visa application was made.

The central legal issue before the Tribunal was whether the applicant had met the requirements of clause 485.221. The applicant had provided documentation indicating completion of a Bachelor of Commerce degree at the Australian National University. However, the Department of Immigration and Border Protection had been unsatisfied that the completion date of the degree fell within the six-month period immediately preceding the visa application date of 10 June 2015.

The Tribunal considered the evidence provided by the applicant, including an award and program summary, an ANU letter certifying completion, and subsequent letters from ANU confirming the date of approval to graduate. The Tribunal found that the applicant had met the requirements of clause 485.221, concluding that the applicant had completed the Bachelor of Commerce degree within the requisite six-month period before the visa application. Consequently, the Tribunal remitted the application to the Minister for reconsideration of the remaining visa criteria.

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 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 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 the requirements in cl.485.221. The applicant applied for the visa and nominated the skilled occupation of Accountant (General). The applicant stated in the visa application that he has met the two year study requirement in the six months before the date of the application. The applicant stated that his qualification completed in Australia was a Bachelor of Commerce Accounting degree at Australian National University (ANU) from 14 February 2011 to 18 December 2014. The applicant provided a number of documents to the Department of Immigration and Border Protection (the Department) including an award and program summary from ANU dated 12 December 2014 and a letter dated 12 December 2014 from ANU certifying that the applicant completed a Bachelor of Commerce. On 17 July 2015 the Department wrote to the applicant and invited him to provided further evidence including a completion letter for his Australian qualifications. On 23 July 2015 the Department wrote to the applicant and again requested that he provide further evidence including a formal letter of completion from ANU with respect to his Bachelor of Commerce because his academic transcript only confirms his award conferral date. The Department requested that the applicant provide a formal letter of completion to confirm the date on which he was formally deemed to have met or completed his study requirements for this qualification. On 11 August 2015, the applicant provided to the Department a letter of completion dated 24 July 2015 from ANU stating that he completed the Bachelor of Commerce degree on 5 December 2014. The delegate was not satisfied that, as the applicant completed the Bachelor of Commerce on 5 December 2014 and applied for the visa on 10 June 2015, the applicant had completed the Bachelor of Commerce degree at Australian National University within the period of six months immediately before the visa application was made. The delegate found that the applicant did not satisfy cl.485.221 as he did not satisfy the Australian study requirement in the period of six months immediately before the visa application was made and did not meet the criteria for a Subclass 485 visa. The applicant applied for review with the Tribunal and provided a number of documents including copies of the following:·The delegate’s decision record;·Copy of official ANU transcript stating that the applicant was approved on 10 December 2014 for the Bachelor of Commerce;·Letter dated 13 May 2015 from M. Coulter, LLB/JD Program Coordinator at ANU College of Law; ·Letter dated 31 August 2015 from E. Ciampa, Senior Graduation Office at ANU, stating that the applicant completed course requirements and was approved to graduate on 10 December 2014; ·Letter dated 4 September 2015 from K. Whitford, Director of Students and Learning, College of Business and Economics at ANU stating that the applicant was approved to graduate on 10 December 2014 having met the requirements of the program of Bachelor of Commerce.

Decision

Reasons for decision

The Tribunal finds that the applicant meets the requirements of cl.485.221. 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.485.221 of Schedule 2 to the Regulations. D. DimitriadisMember

Ratio Decidendi

Legal Principle Established

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