Kumar (Migration) - [2023] AATA 4265

Kumar (Migration) [2023] AATA 4265 (13 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Praveen Kumar
REPRESENTATIVE:  Mr Alan Dino Duri (MARN: 1684393)
CASE NUMBER:  2114479
HOME AFFAIRS REFERENCE(S):          BCC2020/2331886
MEMBER:Alan McMurran
DATE:13 December 2023
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 13 December 2023 at 3:33pm

This is an application lodged 18 October 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 28 September 2021 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, Mr Praveen Kumar, a citizen of India, applied for the visa on 19 September 2020. 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, 485.232 and 485.233.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate found that the applicant had not completed the study requirement within the 6 month specified period for completion of the course requirements, before lodgement. The decision record incorrectly refers to a female applicant/candidate, whereas the applicant is a 33 year-old male.
The applicant was represented in relation to the review.
No hearing
Having considered the submitted documents the Tribunal finds that it can conclude the review under s 360(2)(a) of the Act.
The section provides that where the Tribunal considers it should conclude the review in the applicant’s favour on the basis of the material before it, it is not required to invite the applicant to appear.
Section 360(3) then provides that the applicant is no longer entitled to appear before the Tribunal.
Tribunal Decision
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant was enrolled at The University of Sydney[1] (the course provider) for a degree course starting 5 March 2018. He was enrolled full-time until 30 November 2019, following which he was enrolled part-time from 24 February 2020 until 21 June 2020, with a course “Intensive” enrolment in the period 20 January 2020 to 1 March 2020.
[1] Student number 309290619
The applicant provided the Department with a copy of a letter from the course provider stating that the applicant “completed the requirements” for his degree “as of 12 May 2021”.
The Tribunal wrote to the course provider on 27 October 2023. The emailed letter requested a response…

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 4265
Decision Date: 13 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Post-Study Work stream, made by Mr. Kumar. The central dispute concerned whether Mr. Kumar had satisfied the Australian study requirement within the prescribed timeframe before lodging his visa application.

The Tribunal was required to determine if Mr. Kumar met the criteria for the visa, specifically whether he had satisfied the Australian study requirement within the six months immediately preceding his visa application, as stipulated by clause 485.231(3)(a) of the Regulations. The Tribunal also considered the alternative timeframe provision in clause 485.231(3)(b), which allows for a 12-month period if the applicant was outside Australia during a specific period, and whether Mr. Kumar's qualification was conferred by a specified educational institution.

The Tribunal found that Mr. Kumar held a Master of Interaction Design and Electronic Arts, a qualification specified by the Minister, and that it was conferred by The University of Sydney, also a specified institution. However, the critical issue was the date of completion of his studies. While the university initially stated the applicant "completed the requirements" as of 12 May 2021, further correspondence confirmed this as the date he "met the academic requirement of the course." The Tribunal noted that the applicant's visa application was lodged after this date, and the alternative timeframe provision did not apply as he was not outside Australia during the relevant period.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant meets criterion cl 485.231 of Schedule 2 to the Regulations, indicating that further consideration of the remaining visa criteria was necessary.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant was enrolled at The University of Sydney[1] (the course provider) for a degree course starting 5 March 2018. He was enrolled full-time until 30 November 2019, following which he was enrolled part-time from 24 February 2020 until 21 June 2020, with a course “Intensive” enrolment in the period 20 January 2020 to 1 March 2020.[1] Student number 309290619 The applicant provided the Department with a copy of a letter from the course provider stating that the applicant “completed the requirements” for his degree “as of 12 May 2021”. The Tribunal wrote to the course provider on 27 October 2023. The emailed letter requested a response as to when the applicant had completed the course requirements, including all assessments and exams submitted for the award of the qualification, Master of Interaction Design and Electronic Arts. The same day, the course provider requested the applicant’s authority and consent to provide the information. On 2 November 2023, the Tribunal requested that the applicant provide his authority and on 8 November 2023, the applicant provided his authority and information disclosure release. On 9 November the Tribunal emailed the course provider with the applicant’s disclosed release and authority, which communication was marked ‘return to sender’. The Tribunal re-sent the information. On 10 November 2023, the course provider responded and confirmed that the date the applicant “met the academic requirement of the course is 12 May 2021”. On 13 November 2023, the Tribunal wrote to the applicant under s 359A of the Act informing him that the available information indicates that he completed the course requirements on 12 May 2021, which was after he had lodged his application for the visa with the Department. The applicant was requested to respond by 27 November 2023, failing which, the Tribunal may complete the review without taking any further action and without the right of the applicant to appear for a hearing. On 24 November 2023, the applicant requested an extension of time to respond so as to provide more information “surrounding my completion date”. The applicant was granted an extension until 12 December 2023 to provide information and response. On 11 December 2023, the applicant provided a detailed written response and submission from his representative, which is referred to below.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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) The regulation further provides that an applicant may satisfy the study requirement in the 12 months immediately before the day the visa application was made, if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

Evidence

Evidence Before The Court

On 11 December 2023, the applicant provided a detailed written response and submission from his representative, which is referred to below.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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a)) The regulation further provides that an applicant may satisfy the study requirement in the 12 months immediately before the day the visa application was made, if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). The issue in the present case is whether the applicant meets those requirements. The alternative time frame provision cl 485.231(3)(b) does not apply in this instance because the applicant was not outside Australia at the time.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 IMMI 13/013. In this case, the applicant holds a Master of Interaction Design and Electronic Arts (by coursework),[2] which is a qualification specified in that instrument. [2] CRICOS code 088318F 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 IMMI 13/031. In this case, the applicant’s qualification was conferred or awarded by The University of Sydney (USYD) which is an educational institution specified in that instrument and registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). Therefore the applicant satisfies cl 485.231(2).Does the applicant meet the Australian study requirement? Clause 485.231(3) requires that the applicant 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 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.

Decision

Reasons for decision

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.Alan McMurranMember

Ratio Decidendi

Legal Principle Established

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