GUDAVALLI (Migration) - [2018] AATA 2632

GUDAVALLI (Migration) [2018] AATA 2632 (8 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sai Rajiv GUDAVALLI
CASE NUMBER:  1712121
DIBP REFERENCE(S):  BCC2017/1170965
MEMBER:Susan Trotter
DATE:8 June 2018
PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 08 June 2018 at 4:56pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement for ‘Australian Study Requirement’ to be completed within the 6 months preceding the date of application – Relevant qualification cancelled before completion – Other qualifications not completed within the preceding 6 months – Decision affirmed
LEGISLATION
Education Services for Overseas Students Act (Cth), s 9
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(b)
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.221
CASES
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 then Minister for Immigration and Border Protection[1] (the Minister) on 18 May 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
[1] Now the Minister for Home Affairs
The applicant is a 26 year old citizen of India. He first arrived in Australia in February 2014 as the holder of a Subclass 573 (Higher Education Sector) visa. He finished study in Australia and applied for the visa the subject of this application, known as a Subclass 485 visa, on 27 March 2017.
Visa Class 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 his enrolment in an Advanced Diploma of Management in Human Resources course was cancelled prior to completion, such that that course could not be relied upon to satisfy the Australian study requirement for the visa. Further, although a Master of Engineering course was completed by him, it was not completed in the period of six months immediately before the day of the visa application as required.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 June 2017 and provided the Tribunal with a copy of the delegate’s decision.
The Tribunal wrote to the applicant on 11 May 2018, care of his representative, pursuant to s.359(2) of the Act, inviting him to provide information addressing the requirement that he satisfied the Australian study requirement in the period of six months immediately before the day of the visa application.
On 24 May 2018, the Tribunal received a response to its letter of 11 May 2018 as follows:
On behalf of the applicant, he has instructed me to advise…

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: [2018] AATA 2632
Decision Date: 8 June 2018

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by an applicant who was seeking review of a decision not to grant the visa. The applicant had listed a Master of Engineering from Griffith University and an Advanced Diploma of Management in Human Resources from Academique Pty Ltd as their Australian study.

The central legal issue before the Tribunal was whether the applicant satisfied the "Australian Study Requirement" within the six months immediately preceding the date of their visa application. This requirement is a criterion for the grant of a Subclass 485 visa.

The Tribunal considered the applicant's listed qualifications. It noted that the Advanced Diploma of Management in Human Resources was cancelled and not completed, and therefore could not be relied upon to satisfy the requirement. The Master of Engineering course was completed on 30 November 2015. As the visa application date was 27 March 2017, this qualification was not completed within the six months immediately prior to the application. Consequently, the Tribunal found that the applicant did not meet the criteria for the visa.

The Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the Tribunal’s findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

It follows that the issue to be determined by the Tribunal is whether the applicant satisfied the Australian study requirement in the period of six months immediately before the day of the visa application.CONSIDERATION The applicant listed the following Australian study in his visa application:Master of Engineering Griffith University 28/07/14 to 30/11/15Advanced Diploma of Managementin Human Resources Academique Pty Ltd 14/03/16 to 27/01/17 As noted by the delegate in their decision, the Provider Registration and International Student Management System records show that the Advanced Diploma of Management in Human Recourses course was cancelled and not completed. That course cannot therefore not be relied upon in seeking to satisfy the Australian study requirement. The applicant provided a letter of completion and an academic transcript for the Master of Engineering course to the Department of Immigration and Border Protection[2] showing the date of completion of that course was 30 November 2015.[2] Now the Department of Home Affairs As that course is the only course that can be relied upon to satisfy the Australian study requirement, and it was not completed with the period of six months immediately before the day of the visa application, 27 March 2017, cl.485.221 is not met.Conclusion Given the Tribunal’s findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Susan TrotterMember