Khawas (Migration) - [2022] AATA 5151

Khawas (Migration) [2022] AATA 5151 (15 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ganesh Khawas
REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)
CASE NUMBER:  1926501
HOME AFFAIRS REFERENCE(S):          BCC2019/3765380
MEMBER:Warren Stooke AM
DATE:15 November 2022
PLACE OF DECISION:  Melbourne
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 15 November 2022 at 3:28pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Civil Engineering (Hons) – date of completion – administrative steps – academic effort or evaluation of such effort – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231
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 Minister for Home Affairs on 9 September 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 30 July 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 on the basis that the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the applicant had formally completed his course on 31 July 2019, based upon the university’s academic transcript.
The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was that there was not enough evidence of the eligibility to graduate (prior to application date).
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…

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 5151
Decision Date: 15 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Khawas concerning his application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Post-Study Work stream. The central dispute revolved around whether Mr Khawas satisfied the 'Australian study requirement' as stipulated by the Migration Regulations.

The primary legal issue before the Tribunal was to determine if Mr Khawas had met the criteria for the 'Australian study requirement' under clause 485.231 of the Migration Regulations. This requirement mandates that an applicant must hold a specified qualification, conferred by a specified educational institution, and have satisfied the Australian study requirement in the six months preceding their visa application. The Tribunal was required to assess whether the applicant's completion of a Bachelor of Civil Engineering (Hons) met the detailed regulatory definitions of 'Australian study requirement', including aspects such as the duration of study, academic effort, and the nature of the qualification.

The Tribunal reasoned that the applicant had provided sufficient evidence to satisfy clause 485.231. This included confirmation from the University of Southern Queensland that the applicant was eligible to graduate with his Bachelor of Civil Engineering (Hons) on 27 July 2019. The Tribunal noted the regulatory definitions of 'degree' and 'academic year', and the specific requirement for at least two academic years of study, defined as at least 92 weeks. Based on the evidence presented, the Tribunal concluded that the applicant met the Australian study requirement.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that Mr Khawas had met the criterion under clause 485.231 of Schedule 2 to the Migration Regulations. The Minister was to proceed to consider the remaining criteria for the 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. The applicant was granted a Bridging Visa A on 30 July 2021, which had condition 8501 to maintain health insurance. The applicant provided evidence of health insurance that commenced from 30 July 2019 with Allianz and that he had subsequently changed to Medibank. The applicant provided evidence of the completion of a PTE English language test on 29 November 2018 with a score of 76. The applicant provided evidence of the completion of a Bachelor of Civil Engineering (Hons) at the University of Southern Queensland, which was confirmed by the university as having been completed on 27 July 2019 in correspondence of 11 September 2019. The correspondence stated: “eligible to graduate with award on 27 July 2019”. The applicant provided evidence that he is married to Nisha Shrestha, who is also resident in Australia. The applicant provided evidence that he was currently working with Leroy Palmer as a civil engineer in Toowoomba, on hydraulics design. 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:(a) are registered courses; and(b) were completed in a total of at least 16 calendar months; and(c) were completed as a result of a total of at least two academic years study; and(d) for which all instruction was conducted in English; and(e) 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). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000. Regulation 2.26AC(6) provides as follows:“degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:(a) the entry level to the course leading to the qualification is:(i) in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and(ii) in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and(iii) in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and(iv) in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and(b) in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.”

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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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