Deuja (Migration) - [2017] AATA 434

Deuja (Migration) [2017] AATA 434 (21 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Kanchan Deuja
CASE NUMBER:  1606947
DIBP REFERENCE(S):  BCC2016/1057077
MEMBER:Jennifer Ciantar
DATE:21 March 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.485.231

Statement made on 21 March 2017 at 9:34am
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post Study work stream – Bachelor of Professional Accounting – Qualification completed 6 months before application – Clerical error with completion date
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231, r 1.15F(1), IMMI 13/013
CASES
Sapkota v MIAC [2012] FCA 981
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 29 April 2016 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 11 March 2016. 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 applicant did not complete her Bachelor of Professional Accounting qualification in the period of 6 months ending immediately before the day the application was made.
The applicant appeared before the Tribunal on 16 March 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 Post Study work stream which includes cl.485.231 of Schedule 2 to the Regulations. This requires that the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing (cl.485.231(1). It also requires that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (cl.485.231(2); and that 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. The issue in the present case is whether the applicant meets these requirements.
On the visa application form, the applicant…

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 434
Decision Date: 21 March 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Deuja, an applicant for a Skilled (Provisional) (Class VC) visa, Post Study work stream. The dispute centred on whether the applicant met the requirement that their qualification was completed within the six months immediately preceding the visa application. The applicant had provided conflicting documentation regarding the completion date of their Bachelor of Professional Accounting degree from Holmes Institute, leading to the initial refusal of their application.

The Tribunal was required to determine the correct completion date of the applicant's qualification and, consequently, whether the applicant satisfied the Australian study requirement for the Subclass 485 visa. This involved assessing the various documents provided by the applicant and Holmes Institute, which presented differing completion dates of either 10 March 2016 or 11 March 2016. The visa application was lodged on 11 March 2016, making the precise completion date critical to meeting the six-month timeframe.

The Tribunal noted the conflicting advice received from Holmes Institute regarding the completion date, with different departments providing different dates. However, after further clarification and the provision of additional documentation by the applicant, including an academic transcript and a letter from student records, the Tribunal concluded that the applicant's qualification was completed on 10 March 2016. Based on this finding, the Tribunal remitted the application to the Minister for reconsideration, directing that the applicant met the criterion under cl.485.231 of Schedule 2 to the Regulations.

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 Post Study work stream which includes cl.485.231 of Schedule 2 to the Regulations. This requires that the applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing (cl.485.231(1). It also requires that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (cl.485.231(2); and that 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. The issue in the present case is whether the applicant meets these requirements. On the visa application form, the applicant states that she undertook a Bachelor of Professional Accounting at Holmes Institute from 17 March 2014 to 10 March 2016. However, the applicant provided the Department with her academic transcript, which states that the applicant completed the Bachelor of Professional Accounting on 11 March 2016, and a letter from Holmes Institute, dated 11 March 2016, which states the applicant undertook a Bachelor of Professional Accounting from 17 March 2014 to 11 March 2016. The delegate found that the applicant had completed her degree on 11 March 2016, which is the same day she lodged the visa application. After the Department refused the application, the applicant provided the Department with copies of her results (from her phone) which indicate that her last academic results were sent to her on 10 March 2016. The applicant also provided a letter from Holmes Institute dated 10 May 2016, which states the applicant undertook a Bachelor of Professional Accounting from 17 July 2014 and concluding on 10 March 2016. She was deemed eligible to graduate with the award by the Board of Examiners on 10 March 2016. On 3 March 2017 the Tribunal wrote to the Executive Dean, Faculty of Higher Education, Holmes Institute, and sought advice about the commencement and completion dates of the course undertaken by the applicant, given that Holmes Institute has provided a letter from the Dean which indicates that the completion date was 11 March 2016 and a letter from the Registrar which states that the completion date was 10 March 2016. In response, Holmes Institute provided a letter from the Executive Dean which states that the completion date was 10 March 2016 and a letter from the Campus Director, Melbourne, which states that the completion date was 11 March 2016. The Tribunal again contacted Holmes Institute to seek clarification. On 15 March 2017 the applicant provided further documents to the Tribunal including an Academic Transcript which states that the applicant completed the Bachelor of Professional Accounting on 10 March 2016, and a letter from Andy Liang, Student Records, Holmes Institute, which states that the applicant undertook the Bachelor of Professional Accounting from 17 March 2014 to 10 March 2016.

Decision

Reasons for decision

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.Jennifer CiantarMember

Ratio Decidendi

Legal Principle Established

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