Chhabra (Migration) - [2024] AATA 574

Chhabra (Migration) [2024] AATA 574 (15 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rattandeep Singh Chhabra
REPRESENTATIVE:  Mr Aneel Khowaja (MARN: 1571699)
CASE NUMBER:  2114759
HOME AFFAIRS REFERENCE(S):          BCC2020/2906948
MEMBER:Mary Sheargold
DATE:15 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 15 March 2024 at 7:57am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Engineering (Telecommunications) – course completion date – after visa application date – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231
CASES
Ali v MICMSMA [2021] FCA 1311
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC [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 6 October 2021 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 31 December 2020. 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, 485.232 and 485.233.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.231(3) of Schedule 2 to the Regulations because he did not meet the Australian study requirement in the period of 6 months immediately before the day he made his application.
The applicant appeared before the Tribunal by MS Teams video link on 29 February 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.231(3) requires the applicant to 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 that requirement.
Does the applicant meet the Australian study requirement?
Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.
Under reg 1.15F(1) of the Regulations, a person satisfies the…

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: [2024] AATA 574
Decision Date: 15 March 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr Chhabra against a decision to refuse his application for a Skilled (Provisional) (Class VC) visa, specifically the Post-Study Work stream of the Subclass 485 visa. The core dispute revolved around whether Mr Chhabra satisfied the Australian study requirement as stipulated by clause 485.231(3) of the Migration Regulations 1994. The decision was made by Member Mary Sheargold of the Tribunal.

The primary legal issue before the Tribunal was to determine whether Mr Chhabra met the Australian study requirement within the specified timeframe. This requirement mandates that an applicant must have satisfied the Australian study requirement in the six months immediately preceding their visa application date, or in the twelve months if they were outside Australia during a specific period in 2020. The Tribunal also had to consider the definitions of terms such as "completed" a course, "academic year," and the overall criteria for satisfying the Australian study requirement, including the duration and nature of the study undertaken.

The Tribunal's reasoning focused on the definition of "completed" a degree, which means meeting the academic requirements for its award. Mr Chhabra's Master of Engineering (Telecommunications) degree was undertaken from July 2019, with assessments completed on 9 November 2020. His visa application was lodged on 31 December 2020. A completion letter from his institution dated 20 January 2021 stated the course was completed on 18 January 2021. The Tribunal granted Mr Chhabra an extension to provide further evidence that his course was completed within the six months prior to his application, but no additional evidence was provided by the deadline. Consequently, the Tribunal found that clause 485.231(3) was not met.

Based on these findings, the Tribunal concluded that Mr Chhabra did not satisfy the criteria for the grant of a Subclass 485 visa. Accordingly, the decision under review, which refused the visa application, was affirmed.

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 Clause 485.231(3) requires the applicant to 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 that requirement.Does the applicant meet the Australian study requirement? Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020. 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: LIN 19/085. Mr Chhabra studied for his Master of Engineering (Telecommunications) degree at the Melbourne Institute of Technology from 15 July 2019 until he completed his assessments on 9 November 2020. He made his visa application on 31 December 2020. After he made his application, Mr Chhabra provided the Department with a completion letter from Melbourne Institute of Technology dated 20 January 2021 that stated he had completed his course on 18 January 2021. The delegate refused the application on the basis that Mr Chhabra’s completion date as advised by Melbourne Institute of Technology was not within 6 months of the date immediately before the day he made his application. At the hearing, Mr Chhabra’s representative submitted that his client understood he had not been able to obtain any further evidence from Melbourne Institute of Technology to counter its original advice that his course completion date was 18 January 2021, but stated that Mr Chhabra sought the Tribunal’s indulgence for one final opportunity to obtain information from that institution to assist the Tribunal to make a finding of fact that he had completed his course in the 6 months immediately prior to the day he made his application. The Tribunal agreed to this request and granted Mr Chhabra until 7 March 2024 to provide any additional evidence to support a finding that he could meet the Australian study requirement relying on his Master of Engineering (Telecommunications) degree. As at the date of this decision, no additional evidence has been provided.

Decision

Reasons for decision

Accordingly, cl 485.231(3) is not met.On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Mary SheargoldMember

Ratio Decidendi

Legal Principle Established

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