Kumar (Migration) - [2023] AATA 1447

Kumar (Migration) [2023] AATA 1447 (15 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandeep Kumar
REPRESENTATIVE:  Mr Amrit Pal Jagota (MARN: 0532014)
CASE NUMBER:  2006738
HOME AFFAIRS REFERENCE(S):          BCC2020/186827
MEMBER:Alan McMurran
DATE:15 May 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 15 May 2023 at 10:04am

This is an application lodged 6 April 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, Mr Sandeep Kumar, a 26 year old citizen of the Republic of India, applied for the visa on 27 January 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 includes cl 485.231. The visa allows international students who have recently completed their degree qualifications, within 6 months before the date of lodgement of their application, to live, work and study in Australia temporarily.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations at the time of lodgement[1], because the delegate found that the applicant did not meet the Australian study requirement. He had provided a letter of completion from Elite Education Institute which stated a completion date for his degree on 28 January 2020, one day after lodgement[2] of the application on 27 January 2020.
[1] 27 January 2020
[2] 28 January 2020
The applicant appeared in person before the Tribunal on 12 May 2023 to give evidence and present arguments. The applicant was represented in relation to the review. Both the applicant and representative had made written submissions before the hearing. The applicant was asked if he was ready to proceed and indicated he had no further submissions to make and did not require an adjournment or extension of time.
Decision
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements in regulation 485.231 for the criteria in the post-study work stream. In particular, whether the applicant satisfied the Australian study requirement [r.485.231(3)(a)].
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…

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 1447
Decision Date: 15 May 2023

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), made by Mr. Kumar. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr. Kumar met the criteria for the post-study work stream, specifically the Australian study requirement.

The central legal issue before the Tribunal was whether the applicant satisfied the Australian study requirement as stipulated in regulation 485.231(3)(a) of the Migration Regulations 1994. This regulation requires that the applicant's study for a specified qualification must have been completed within the six months immediately preceding the visa application. The applicant had lodged his visa application on 27 January 2020, and the courses he completed were within the six months prior to this date. However, the official completion letter was delayed due to the university's administrative processes, despite the education provider acknowledging that the academic requirements had been met earlier.

The Tribunal found that the applicant met the criteria under clause 485.231 of Schedule 2 to the Regulations. It reasoned that the applicant held a specified qualification (Bachelor of Business (Professional Accounting)) conferred by a specified educational institution, satisfying subclauses 485.231(1) and (2). Crucially, the Tribunal accepted that the applicant had satisfied the Australian study requirement, even though the formal documentation was delayed, as the education provider confirmed the academic completion within the relevant timeframe.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant meets the criterion set out in 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 The issue in this case is whether the applicant meets the requirements in regulation 485.231 for the criteria in the post-study work stream. In particular, whether the applicant satisfied the Australian study requirement [r.485.231(3)(a)]. 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 relevant provision sets out as follows: 485.23 Criteria for Post-Study Work stream[Note: These criteria are only for applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Post-Study Work stream.]485.231 (1A) This clause does not apply to an applicant who meets the requirements of clause 485.232, 485.233, 485.234 or 485.235.(1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.(2) Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.(3) The applicant's study for the qualification or qualifications satisfied the Australian study requirement:(a) in the period of 6 months immediately before the day the application was made; or(b) if the Minister is satisfied that the applicant was unable to apply during the period mentioned in paragraph (a) because the applicant was outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020--in the period of 12 months immediately before the day the application was made The Tribunal deals with each of those criteria as set out below. Relevantly, the applicant has made only one application for the visa on 27 January 2020 and has remained onshore throughout the period of application and for this review. Accordingly, the provisions (inclusive) in clauses 485.232 to cl 485.235 do not apply.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 Bachelor of Business (Professional Accounting) which is a qualification[3] specified in that instrument.[3] Bachelor Degree 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 13/031. It requires the conferral of degree by a registered organisation in the Commonwealth Register of Institutions for Overseas Students (CRICOS).

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.Alan McMurranMember

Ratio Decidendi

Legal Principle Established

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