Irfan (Migration) - [2020] AATA 916

Irfan (Migration) [2020] AATA 916 (26 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Ehtisham Irfan
CASE NUMBER:  1834713
HOME AFFAIRS REFERENCE(S):          BCC2018/3505374
MEMBER:Roslyn Smidt
DATE:26 March 2020
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 of Schedule 2 to the Regulations

Statement made on 26 March 2020 at 11:03am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – two years of academic study – course completed in less time by being granted credit points from other study – course completion letter dated after date of application, but final results published and academic transcript dated before – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 1.15F(1)(c), Schedule 2, cl 485.231(3)
CASE
Riaz v MIBP [2013] FCCA 2244
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 9 November 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 applied for the visa on 14 September 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 the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because it appeared that the applicant had not completed his course until after his visa application was lodged.
For the following reasons, the Tribunal has concluded that the [matter should be remitted for reconsideration.
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. 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 IMMI 13/013. In this case, the applicant holds a Masters of Information and Communications Technology (Advanced) 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…

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.

Continue reading Irfan (Migration)

Details

AGLC: Irfan (Migration) [2020] AATA 916
Case: [2020] AATA 916
Decision Date: 26 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, post-study work stream, against a decision made by the Administrative Appeals Tribunal. The central dispute revolved around whether the applicant had satisfied the Australian study requirement for the visa.

The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the Australian study requirement as stipulated in clause 485.231 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to consider if the applicant held a qualification specified by the Minister, conferred by a specified educational institution, and if their study for that qualification met the Australian study requirement in the six months immediately preceding the visa application. The definition of "completed" and "academic year" within the context of the Australian study requirement was also a key consideration.

The Tribunal found that the applicant held a Master of Information and Communications Technology (Advanced) from Western Sydney University, both of which were specified in the relevant ministerial instruments. The Tribunal further determined that the applicant had met the Australian study requirement, as defined by regulation 1.15F(1), by completing a course registered under the Education Services for Overseas Students Act 2000, which involved at least two academic years of study and was undertaken in Australia. The Tribunal noted that the applicant had been granted credit for prior study, resulting in the course being completed in less than the standard duration, but that the academic transcript, reflecting final results, predated the visa application.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criterion under clause 485.231.

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 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. 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 IMMI 13/013. In this case, the applicant holds a Masters of Information and Communications Technology (Advanced) 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 IMMI13/031. In this case, the applicant’s qualification was conferred or awarded by Western Sydney University (WSU) 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 1 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.LIN19/85

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231. 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.Roslyn SmidtMember

Ratio Decidendi

Legal Principle Established

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