GABBI (Migration) - [2018] AATA 2469

GABBI (Migration) [2018] AATA 2469 (25 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manjeet Singh GABBI
CASE NUMBER:  1710617
DIBP REFERENCE(S):  BCC2017/995780
MEMBER:Susan Trotter
DATE:25 May 2018
PLACE OF DECISION:  Brisbane
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 25 May 2018 at 5:23pm.
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant satisfied the ‘Australian study requirement’ in the six months preceding the date of application – Courses undertaken of appropriate level and duration – Most recent qualification completed in preceding 6 months – Decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.15F, 2.26AC(6), Schedule 2, cl 485.221
CASES
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC & Anor [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 then Minister for Immigration and Border Protection (the Minister) on 5 May 2017 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 14 March 2017. 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 delegate refused to grant the visa on the basis that 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 six months ending immediately before the day the application was made because the study relied upon by the applicant had not been completed in a total of at least 16 months as required.
The applicant applied to the Tribunal on 18 May 2017 seeking review of the delegate’s decision.
The applicant was represented in relation to the review by his registered migration agent.
In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which criteria includes cl.485.221 of Schedule 2 to the Regulations.
This criterion requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the visa application was made.
Under r.1.15F(1) of the Regulations, a person…

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.

Keep reading for free

Create a free CaseChat account to read GABBI (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 2469
Decision Date: 25 May 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The applicant sought to demonstrate that they satisfied the 'Australian study requirement' in the six months preceding their visa application. The Tribunal was required to determine whether the applicant met this requirement, and if so, whether it was satisfied within the specified timeframe.

The central legal issues before the Tribunal were twofold: first, whether the applicant met the general Australian study requirement, and second, if they did, whether this requirement was satisfied in the six months immediately prior to the date of their visa application. To address these, the Tribunal had to consider the nature and duration of the courses undertaken by the applicant and whether they qualified as a degree, diploma, or trade qualification as defined by the relevant regulations.

The Tribunal examined the applicant's study history, which included a Diploma of Management, an Advanced Diploma of Management, and a Certificate IV in Commercial Cookery. It was satisfied that the Diploma and Advanced Diploma courses met the definition of diplomas for the purposes of the Australian study requirement. The Tribunal also considered the definition of a 'trade qualification' in relation to the Certificate IV in Commercial Cookery, which included qualifications at least at Certificate III level for specific skilled occupations. The Tribunal noted that the Certificate IV in Commercial Cookery was confirmed by the provider to have a duration of 62 weeks. The Tribunal ultimately found that the applicant's most recent qualification was completed within the six months preceding the date of application, and therefore remitted the decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It follows that the issues to be determined by the Tribunal are:(a) does the applicant meet the Australian study requirement? And, if so,(b) was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application? And, if so,CONSIDERATION OF CLAIMS AND EVIDENCE The applicant listed the following Australian study in his visa application:Certificate IV in Commercial Cookery Queensford College of Australia 21/11/16 to 10/03/17Advanced Diploma of Management New England College of Technology 01/12/14 to 31/05/15Diploma of Management New England College of Technology 26/05/14 to 23/11/14 The applicant provided the following documents in support of his application:(a) a confirmation of enrolment, award certificate and transcript of results in relation to the Certificate IV confirming his start and end dates of study as stated;(b) a final results transcript, award certificate and letter of completion in relation to the Advanced Diploma confirming his start and end dates of study as stated;(c) a final results transcript, award certificate and letter of completion in relation to the Diploma confirming his start and end dates of study as stated. The applicant has subsequently provided to the Tribunal the following documents:(a) a letter from Queensford College dated 30 August 2017 confirming that he was enrolled in a Certificate IV in Commercial Cookery from 6 July 2015 to 13 November 2016 and from 21 November 2016 to 10 March 2017;(b) a Certificate certifying that the applicant fulfilled the requirements for a Certificate IV in Commercial Cookery on 10 March 2017;(c) a Transcript of Results for a Certificate IV in Commercial Cookery showing a start date of 6 July 2015 and an end date of 13 November 2016;(d) a Transcript of Results for a Certificate IV in Commercial Cookery showing a start date of 21 November 2016 and an end date of 10 March 2017;(e) an email from Queensford College dated 10 May 2018 confirming that the Certificate IV in Commercial Cookery (CRICOS Code 084086E) had a duration of 62 weeks.Issue 1 - Does the applicant meet the Australian study requirement? Records from the Provider Registration and International Students Management System (PRISMS) show the following courses, and course duration dates, completed by the applicant in Australia:Certificate IV in Commercial Cookery 06/07/15 to 13/11/16Certificate IV in Commercial Cookery 21/11/16 to 10/03/17Advanced Diploma of Management 01/12/14 to 31/05/15Diploma of Management 26/05/14 to 23/11/14 The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met. The Tribunal is satisfied and finds that the Diploma of Management and Advanced Diploma of Management courses are diplomas as defined by r.2.26AC(6) and can be taken into account. As regards the Certificate IV in Commercial Cookery, the definition of ‘trade qualification’ includes:(b)a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or(c)a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.