Goyal (Migration) - [2021] AATA 2304

Goyal (Migration) [2021] AATA 2304 (18 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ashish Goyal
CASE NUMBER:  1827780
HOME AFFAIRS REFERENCE(S):          BCC2018/2855254
MEMBER:K. Chapman
DATE:18 June 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 18 June 2021 at 3:32pm

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 3 September 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant, Mr Ashish Goyal, applied for the visa on 30 July 2018. 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 (‘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.
The delegate refused to grant the visa because they were not satisfied that the applicant completed his study of the Master of Accounting and Financial Management within the 6 months immediately prior to the visa application, therefore not meeting the requirements of cl.485.231 of Schedule 2 to the Regulations.
On 21 September 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. He subsequently submitted a written statement, ‘Provisional Completion Letter’ from La Trobe University dated 30 July 2018 and a letter from the University dated 19 July 2018 confirming his entitlement to a supplementary examination.
The applicant appeared by telephone before the Tribunal on 27 May 2021 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone. Following the review hearing, the applicant submitted several pieces of medical evidence to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (emphasis added). The issue in the present case is whether the applicant meets those requirements.
Does the applicant hold a specified qualification?
Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds the Master of Accounting and Financial Management which is a qualification specified in that instrument.
Accordingly, cl.485.231(1) is met.
Was the applicant’s qualification conferred or awarded by a specified educational…

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: [2021] AATA 2304
Decision Date: 18 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Goyal concerning his application for a Skilled (Provisional) (Class VC) visa, specifically the post-study work stream of the Subclass 485 (Temporary Graduate) visa. The central dispute revolved around whether Mr. Goyal met the Australian study requirement for this visa subclass.

The primary legal issue before the Tribunal was to determine if Mr. Goyal satisfied clause 485.231 of the Migration Regulations, which mandates that an applicant must hold a specified qualification awarded by a specified educational institution, and that their study for that qualification must have met the Australian study requirement within the six months immediately preceding the visa application. This requirement, as defined by regulation 1.15F, involves completing registered courses totalling at least 16 calendar months and at least two academic years of study, undertaken in Australia while holding a study-authorised visa.

The Tribunal found that while Mr. Goyal held a Master of Accounting and Financial Management from La Trobe University, which were specified qualifications and institutions, he failed to meet the Australian study requirement. This failure stemmed from the timing of his qualification completion. Although he had met the academic requirements for his degree, a medical issue prevented him from taking his final exam on the scheduled date. He was subsequently advised by a departmental officer to apply for the current visa before his student visa expired. His provisional completion letter was dated the same day as his final exam and visa application, but his final letter and academic transcript were issued approximately one week later. The Tribunal concluded that the academic requirements for the qualification were not met within the six months immediately before the visa application was made, as required by clause 485.231(3).

Consequently, the Tribunal affirmed the decision not to grant Mr. Goyal the Skilled (Provisional) (Class VC) visa, as he did not satisfy the criteria for the grant of a Subclass 485 visa.

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 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (emphasis added). The issue in the present case is whether the applicant meets those requirements. Does the applicant hold a specified qualification? Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds the Master of Accounting and Financial Management which is a qualification specified in that instrument. Accordingly, cl.485.231(1) is met.Was the applicant’s qualification conferred or awarded by a specified educational institution? Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031. In this case, the applicant’s qualification was conferred or awarded by La Trobe University (CRICOS Provider code 00115M) which is an educational institution specified in that instrument. Accordingly, cl.485.231(2) is met.Does the applicant’s study for the specified qualification meet the Australian study requirement? Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. 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 one 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 rr.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 (r.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: instrument LIN19/085.

Decision

Reasons for decision

On the basis of the matters outlined above, the Tribunal finds that the applicant does not satisfy 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, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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