Kalakuntla (Migration) - [2022] AATA 4907

Kalakuntla (Migration) [2022] AATA 4907 (9 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sai Krishna Rao Kalakuntla
REPRESENTATIVE:  Mr Sunny P Chandra (MARN: 0959742)
CASE NUMBER:  1935388
HOME AFFAIRS REFERENCE(S):          BCC2019/4614584
MEMBER:Ian Berry
DATE:9 December 2022
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 485.231 of Schedule 2 to the Regulations

Statement made on 09 December 2022 at 3:00pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post Study Work stream – applicant’s study satisfied the Australian study requirement in the 6 months immediately before the date of the visa application – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cl 485.231
CASES
Ali v MICMSMA [2021] FCA 1311
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 6 December 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 September 2019. 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 (Cth) (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 the information available to the delegate and the applicant’s course was completed on 17 September 2019 which was not within the 6 month period..
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s 360(2)(a) of the Act.
The applicant was represented in relation to the review.
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…

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: [2022] AATA 4907
Decision Date: 9 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 Post Study Work stream. The central dispute concerned whether the applicant satisfied the Australian study requirement within the six months immediately preceding their visa application, as mandated by the relevant regulations.

The Tribunal was required to determine if the applicant met the criteria outlined in clause 485.231 of the Migration Regulations. This involved assessing whether the applicant held a qualification specified by the Minister, awarded by a specified educational institution, and whether their study for that qualification satisfied the Australian study requirement within the specified timeframe. The definition of the Australian study requirement, as set out in regulation 1.15F(1), was also a key element of the determination.

The Tribunal reasoned that the applicant's Master of Information Technology qualification met the specified criteria under IMMI 13/013 and was awarded by Charles Sturt University, an institution specified under IMMI 14/010. Crucially, the Tribunal found that the applicant's study for this qualification satisfied the Australian study requirement. This conclusion was based on evidence demonstrating that the Master of Information Technology was a CRICOS-registered course, comprised of 104 academic weeks of study, completed within 16 calendar months, and undertaken while the applicant held a visa authorising study.

Consequently, the Tribunal concluded that the applicant met the requirements of clause 485.231. The matter was remitted to the Minister for reconsideration, with the direction that the applicant had satisfied this specific criterion for the 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 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 is IMMI 13/013. In this case, the applicant holds a Master of Information Technology 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 14/010. In this case, the applicant’s qualification was conferred or awarded by Charles Sturt University which is an educational institution specified in that instrument. Accordingly, cl 485.231(2) is met.Does the applicant 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 reg 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 because 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 regs 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 (reg 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: LIN 19/085. In satisfying the Australian study requirement the following criteria is established by the evidence presented to the Tribunal:·The Master of Information Technology Is a CRICOS[1] registered course[2], ·The 2812CT Master of Information Technology (Computer Networking) at assigned to it 104 academic weeks of study.·The applicant completed the studies in a total of at least 16 coming months. ·The applicant held a TU-500 visa allowing him to study.[1] Acronym for 'Commonwealth Register of Institutions and Courses for Overseas Students[2] Reg 1.03 of the Migration Regulations.

Decision

Reasons for decision

Based on 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.Ian BerryMember

Ratio Decidendi

Legal Principle Established

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