Lee (Migration) - [2024] AATA 1013

Lee (Migration) [2024] AATA 1013 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Hyunyoung Lee
REPRESENTATIVE:  Ms Sally Hunt
CASE NUMBER:  2116629
HOME AFFAIRS REFERENCE(S):          BCC2020/1942723
MEMBER:Alan McMurran
DATE:8 April 2024
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 criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations; and
·cl 485.222 of Schedule 2 to the Regulations

Statement made on 08 April 2024 at 10:03am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Accountant (General) – Australian study requirement – Master of Commerce – date of completion for the course requirements – notification that results ‘have been approved by the university’ – formal completion letter – course requirements completed ‘as of’ that date – qualification ‘closely related’ to nominated occupation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Ali v MICMSMA [2021] FCA 1311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 14 November 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 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, Miss Hyunyoung Lee, a 34 year-old citizen and national of the Republic of Korea (South), applied for the visa on 22 July 2020. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.)
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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. There are no additional family members combined with this application. All criteria must be met for the application to progress.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.221 of Schedule 2 to the Regulations, because the delegate found that the applicant had completed the course of study relied upon by her after the visa application was made, and not beforehand, as the regulation requires.
The applicant was represented in relation to the review by her legal representative, who has made helpful and comprehensive submissions. The Tribunal was able to make a decision on the papers and without the need to invite the applicant to a hearing.[1]
[1] Section 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Tribunal process

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: [2024] AATA 1013
Decision Date: 8 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream, brought by an applicant who nominated Accountant (General) as their skilled occupation. The core dispute revolved around whether the applicant satisfied the primary criteria for the visa, specifically the 'Australian study requirement' and the requirement that their qualification be 'closely related' to their nominated occupation. The decision was made by Alan McMurran, a Member of the Tribunal.

The legal issues before the Tribunal were twofold: firstly, whether the applicant had satisfied the 'Australian study requirement' within the six months preceding their visa application, and secondly, whether the degree used to satisfy this requirement was closely related to the applicant's nominated occupation. The 'Australian study requirement' is defined by regulation 1.15F(1) and necessitates the completion of registered courses in Australia, undertaken while holding a study-authorising visa, over a minimum duration and academic year count, with all instruction in English. The definition of 'completed' in relation to a qualification means having met the academic requirements for its award.

The Tribunal found, on the available evidence including a course summary from the University of Sydney, that the applicant had met the requirements for the award of a Master of Commerce, specialising in Accounting. This qualification was determined to be a registered course, completed over at least 16 calendar months and at least two academic years, with all instruction in English, and undertaken while holding a visa authorising study. Consequently, the Tribunal concluded that the applicant satisfied both the 'Australian study requirement' under clause 485.221 and the 'closely related' qualification requirement under clause 485.222 of Schedule 2 to the Regulations.

The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant meets the specified criteria 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

The Tribunal makes reference below to this information in consideration of the evidence upon review and for this decision.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These sub-clauses require that the applicant must have:· satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) and · secondly, unless limited circumstances apply, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222(1)). The issue in the present case is whether the applicant meets those requirements.Does the applicant meet the Australian study requirement? 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; and·that were completed in a total of at least 16 calendar months; and·that were completed as a result of a total of at least 2 academic years study; and·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 or courses registered under the Education Services for Overseas Students Act 2000 (Cth).[4] [4] LIN19/085.Findings The Tribunal has reviewed all the available information. This includes the course summary produced by the University of Sydney, and the information as to completion by the applicant. The Tribunal finds on the available evidence that the applicant met the following qualification requirements for the award of Master of Commerce, specialising in Accounting. The Tribunal finds that the qualification was the result of:·a registered course (as defined by reg 1.03);·completed in a total of at least 16 calendar months (as defined by reg 1.15F(2));·as a result of at least 2 academic years study where academic year is defined[5] as at least a total of 46 weeks, being the duration of the course or courses[6];·for which all instruction was conducted in English; and·whilst holding a visa authorising study.[5] Reg 1.03 of the Regulations[6] LIN19/085 Part 2 Definition [ at 6]

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 criteria for a Subclass 485 visa:·cl 485.221 of Schedule 2 to the Regulations; and·cl 485.222 of Schedule 2 to the Regulations.Alan McMurranMember

Ratio Decidendi

Legal Principle Established

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