Levy (Migration) - [2016] AATA 1398

Levy (Migration) [2016] AATA 1398 (8 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Stephanie Levy
CASE NUMBER:  1622130
DIBP REFERENCE(S):  BCC2016/3511709
MEMBER:Susan Trotter
DATE:8 June 2016
PLACE OF DECISION:  Brisbane
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 8 June 2018 at 4:58pm
CATCHWORDS
Migration – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant satisfied the ‘Australian Study Requirement’ in the 6 months preceding the date of the visa application – Whether mandatory internship was ‘completed’ by the date of application – Where the internship had not been administratively assessed by the application date - No further participation required by applicant by date of application – Decision remitted with direction
LEGISLATION
Education Services for Overseas Students Act (Cth), s 9
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cl 485.231
CASES
Venkatesan v MIAC & Anor [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 then Minister for Immigration and Border Protection[1] (the Minister) on 6 December 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
[1] Now the Minister for Home Affairs.
The applicant is a 22 year old citizen of Brazil. She arrived in Australia in July 2012 as the holder of a Subclass 571 (School Sector) visa and has undertaken various study in Australia. She applied for the temporary visa (the subject of this application), known as a Subclass 485 visa, on 21 October 2016.
Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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 delegate was not satisfied that she satisfied the ‘Australian study requirement’ in the six months ending immediately before the day the application was made. This finding was based upon a letter of completion from the applicant’s educational provider stating that the applicant’s study status for the applicable study was passed on 3 November 2016, which is not within the stipulated six month period.
The applicant applied to the Tribunal on 22 December 2016 seeking review of the delegate’s decision.
The applicant appeared before the Tribunal on 4 May 2018 to give evidence and present arguments. The Tribunal allowed additional time after the hearing for the applicant to provide further evidence and submissions, which the Tribunal has also taken into account.
The applicant was represented…

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: [2016] AATA 1398
Decision Date: 8 June 2016

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Levy, against a decision of the Migration Review Tribunal. The applicant sought review of the Tribunal's decision regarding her eligibility for a Partner (Migrant) (Class BC) visa, Subclass 100, and a Skilled (Provisional) (Class VC) visa, Subclass 485. The central dispute revolved around whether the applicant satisfied the 'Australian Study Requirement' in the six months preceding her visa application, specifically concerning the completion of a mandatory internship component of her Bachelor of Business in International Hospitality Management.

The legal issues before the court were whether the applicant held a specified qualification awarded by a specified institution, and crucially, whether she satisfied the Australian study requirement in the six months immediately prior to her visa application. This latter issue hinged on determining the precise date on which the applicant's mandatory internship was considered 'completed' for the purposes of the visa requirements, particularly as the administrative assessment of the internship had not been finalised by the date of application, though no further participation was required from the applicant.

The court considered evidence from Southern Cross University, which clarified that while the applicant satisfied the coursework and internship requirements on 30 September 2016, her results were formally finalised by the University on 3 November 2016. This latter date was confirmed as the point at which the applicant formally met the academic requirements for the award of her degree. The court found that the applicant met the criterion cl.485.231 of Schedule 2 to the Regulations concerning the Australian study requirement. Consequently, the Tribunal's decision was set aside, and the visa application was remitted to the Minister for reconsideration of the remaining visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

It follows that the issues to be determined by the Tribunal are as follows:(a) Does the applicant hold a qualification of a kind specified? And, if so,(b) Was the qualification conferred or awarded by a specified institution? And, if so,(c) Did the applicant satisfy the Australian study requirement in the period of six months ending immediately before the day of the visa application?CONSIDERATION The applicant listed the following Australian study in her visa application:Bachelor in International Southern Cross University From 16/06/14 To 20/10/16Hospitality Management The applicant provided a Student Verification Letter for a Bachelor of Business in Tourism and Hospitality Management, from the Southern Cross University dated 16 November 2016, to the then Department of Immigration and Border Protection[2] (the Department) with her application. The letter stated that the applicant’s study status was ‘passed on 3 November 2016’ and that her study dates were 16 June 2014 to 22 October 2016.[2] Now the Department of Home Affairs On 19 December 2017, the applicant provided a completion letter dated 8 December 2016 to the Tribunal which included as follows:Course: Bachelor of Business in International Hospitality Management…Course C of E (Confirmation of Enrolment) proposed study dates: 16th June 2014 to October 22nd 2016…Satisfied requirements: 30th September 2016Recommended Graduation Ceremony; May 2017This award was taught entirely in English.On advice from the internship officers [names deleted], Miss Levy satisfied her internship and therefore the above mentioned Bachelors on the 30th of September 2016 and is eligible to graduate with the award.… Pre-hearing written submissions were provided to the Tribunal, referring to the 19 December 2017 letter from the University, submitting that based on that letter the applicant satisfied the requirements for the degree on 30 September 2016, and therefore satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made. On 16 April 2018, the Tribunal wrote to the Southern Cross University seeking clarification of the date upon which the applicant completed the academic requirements for award of a Bachelor of Business in International Hospitality Management. On 23 April 2018, the Southern Cross University wrote to the Tribunal as follows:With reference to your letter dated 16 April 2018, I have reviewed the documents provided to the Tribunal and have made enquiries as to the content and their authenticity.I can confirm that the letters were written by University staff members.I can also confirm that the letter dated 8 December 2016 refers to the date on which Ms Levy satisfied the internship requirements, and so completed the coursework component of the Bachelor of Business in International Hospitality Management, being 30 September 2016.The letter dated 16 November 2016 refers to the date on which Ms Levy’s results were finalised by the University, being 3 November 2016. This is the date on which Ms Levy formally met the academic requirements for the award of her degree. Unfortunately this letter incorrectly referred to Ms Levy having studied a Bachelor of Business in Tourism and Hospitality Management. This error was noted and corrected in any email on the same date.In summary, Ms Levy formally met the requirements for the award of a Bachelor of Business in International Hospitality Management on 3 November 2016.