Kruger (Migration) - [2023] AATA 3881

Kruger (Migration) [2023] AATA 3881 (10 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Marilene Kruger
Mr Jan Johannes Jacobus Kruger
REPRESENTATIVE:  Mr Bruce Andrew Macfarlane (MARN: 1461325)
CASE NUMBER:  2111755
HOME AFFAIRS REFERENCE(S):          BCC2019/6515167
MEMBER:K. Chapman
DATE:10 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:
·cl 485.231 of Schedule 2 to the Regulations.

Statement made on 10 November 2023 at 2:20pm

This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 25 August 2021, to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The first named applicant applied for the visa on 6 December 2019, including the second named applicant in the visa application. 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 matter, the applicant is seeking to meet the criteria in the Post-Study Work stream, which relevantly include cl 485.231.
The delegate refused to grant the visas because the first named applicant (hereafter ‘the applicant’) did not satisfy cl 485.231 of Schedule 2 to the Regulations. In the view of the delegate, the applicant did not complete her Bachelor of Science (Occupational Therapy) qualification until after the time of application for the visa. Therefore, the delegate was not satisfied the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.
On 3 September 2021, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application. In due course, the applicant submitted material including written submissions and academic correspondence. Of note, the applicant submitted a letter from the Course Coordinator of Occupational Therapy at Edith Cowan University, dated 27 August 2021, clarifying the applicant’s course completion date.
The applicant appeared by telephone before the Tribunal on 6 October 2023 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by her registered migration agent (‘the representative’).
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 review is whether the applicant meets…

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: [2023] AATA 3881
Decision Date: 10 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 Temporary Graduate visa under the Post-Study Work stream. The applicant sought review of a decision concerning their eligibility for this visa. The core of the dispute revolved around whether the applicant had satisfied the Australian study requirement within the six months immediately preceding their visa application.

The Tribunal was required to determine whether the applicant met the criteria for the Subclass 485 visa, particularly clause 485.231 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant held a qualification specified by the Minister, conferred by a specified educational institution, and whether their study for that qualification satisfied the Australian study requirement in the six months prior to the visa application. The definition of "completed" in relation to a qualification, meaning the academic requirements for its award had been met, was also a key consideration.

The Tribunal reasoned that while the applicant held a specified qualification awarded by a specified institution, the critical issue was the timing of the completion of their studies relative to the visa application. The applicant's qualification was completed after the visa application was lodged. However, the Tribunal noted that "completed" for the purposes of the Australian study requirement refers to meeting academic requirements. A clarifying letter from the university indicated that the academic requirements for the qualification were satisfied before the visa application was made, even though the formal conferral occurred later. The Tribunal concluded that the applicant had met the academic requirements for their qualification prior to the visa application, thereby satisfying the Australian study requirement.

Consequently, the Tribunal remitted the application for reconsideration by the Department, with a direction that the applicant meets the criterion under clause 485.231 of Schedule 2 to the Regulations. The application of the second applicant, who was a member of the family unit, was to be determined by reference to the outcome of the primary applicant's reconsidered application.

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 review is whether the applicant meets those requirements.Does the applicant hold a specified qualification? Clause 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 LIN 23/023. In this review, the applicant holds a Bachelor of Science (Occupational Therapy) which is a qualification specified in that instrument. Therefore, the applicant satisfies cl 485.231(1).Was the applicant’s qualification conferred or awarded by a specified educational institution? Clause 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 LIN 23/021. In this review, the applicant’s qualification was conferred or awarded by Edith Cowan University which is an educational institution specified in that instrument. Therefore, the applicant satisfies cl 485.231(2).Does the applicant meet the Australian study requirement? Clause 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. Pursuant to 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 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 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 review, 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.

Decision

Reasons for decision

The Tribunal finds that as the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, his outcome will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration. DECISION The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:·cl 485.231 of Schedule 2 to the Regulations.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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