Evans (Migration) - [2017] AATA 1580

Evans (Migration) [2017] AATA 1580 (4 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Dylan Warwick Edward Evans
Ms Erin M Beach
CASE NUMBER:  1708186
DIBP REFERENCE(S):  BCC2016/4067642
MEMBER:Katie Malyon
DATE:4 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:
·cl.485.231(3) of Schedule 2 to the Regulations.

Statement made on 04 September 2017 at 7:26 pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Academic requirements met within 6 months immediately before visa application made
LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.231

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 28 March 2017 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 2 December 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 visas because the first named applicant, Dr Dylan Warwick Edward Evans, not satisfy cl.485.231 of Schedule 2 to the Regulations since, based on the letter dated 7 December 2016 from the University of Sydney he completed the requirements and was awarded the degree of Doctor of Dental Medicine at the University of Sydney on 7 December 2016, that is, 5 days after he lodged his Subclass 485 visa application rather than at some time in the 6 months before the application was lodged. A copy of the delegate’s decision was provided to the Tribunal.
The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers pursuant to s.360(2)(a) of the Act having regard to material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Dr Evans is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations. These include that the applicant must have satisfied…

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 1580
Decision Date: 4 September 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Dr Evans, who sought review of a decision concerning his application for a Skilled (Provisional) (Class VC) visa, Subclass 485. The central dispute revolved around whether Dr Evans met the 'Australian study requirement' as stipulated by the regulations for this visa subclass.

The primary legal issue before the Tribunal was to determine whether Dr Evans had 'completed' his Doctor of Dental Medicine (DMD) degree within the six months immediately preceding his visa application made on 2 December 2016, as required by clause 485.231(3) of Schedule 2 to the Regulations. This involved interpreting the definition of 'completed' in relation to a degree, which the regulations clarify means having met the academic requirements for its award, irrespective of formal conferral.

The Tribunal reasoned that Dr Evans satisfied the Australian study requirement based on a letter from the Dean of the Faculty of Dentistry at Sydney University. This letter confirmed that Dr Evans was deemed to have successfully completed the requirements of his DMD degree by the Faculty’s Progression Committee on 23 November 2016, following his final examinations on 18 November 2016. The Tribunal noted that these results were uploaded to his student record on 2 December 2016. Applying the definition of 'completed' which excludes the formal conferral of the degree, the Tribunal found that Dr Evans had met the academic requirements for the award of his degree within the relevant timeframe. Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that Dr Evans met the criterion specified in clause 485.231(3) 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

The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers pursuant to s.360(2)(a) of the Act having regard to material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Dr Evans is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations. These include that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3) of Schedule 2 of the Regulations. The issue in this case is whether Dr Evans ‘completed’ his Doctor of Dental Medicine in the 6 months immediately before making his Subclass 485 visa application on 2 December 2016 as required by cl.485.231(3) of Schedule 2 of the Regulations. Does the applicant meet the Australian study requirement? Under r.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: (a) that are registered courses; and,(b) that were completed in a total of at least 16 calendar months; and,(c) that were completed as a result of a total of at least 2 academic years study; and,(d) for which all instruction was conducted in English; and,(e) 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 r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000. Regulation 1.15F(2) defines the ‘completion’ of a degree, diploma or trade qualification as follows:(2) In this regulation: completed, in relation to a degree, diploma or trade qualification means having met the academic requirements for its award. Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred. Accompanying the application for review to the Tribunal, Dr Evans provided a letter dated 30 March 2017 signed by Professor Chris Peck, Dean of the Faculty of Dentistry at Sydney University. In his letter, Professor Beck states: I write this letter as Dean of the Faculty of Dentistry, University of Sydney, to confirm that Dr Dylan Warwick Edward EVANS was confirmed as having successfully completed the requirements of the 4-year Doctor of Dental Medicine (DMD) degree by the Faculty’s Progression Committee on 23 November 2016 following the final examinations on 18 November 2016 and, on 2 December 2016, those results were uploaded onto his student record (emphasis added).

Decision

Reasons for decision

Having regard to all of the evidence referred to above, the Tribunal finds that Dr Evans satisfies the Australian study requirement in the 6 months immediately before the date he lodged his Subclass 485 the visa application. Therefore, he meets cl.485.231(3) of Schedule 2 of the Regulations. In the circumstances, 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 applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:·cl.485.231(3) of Schedule 2 to the Regulations.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

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