MALHOTRA (Migration) - [2019] AATA 5076

MALHOTRA (Migration) [2019] AATA 5076 (9 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ritush MALHOTRA
CASE NUMBER:  1813490
HOME AFFAIRS REFERENCE(S):           BCC2018/1171676
MEMBER:Kira Raif
DATE:9 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications 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(3) of Schedule 2 to the Regulations

Statement made on 09 August 2019 at 9:01am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – studies completed in an academic year – study duration of at least 92 weeks – courses completed concurrently – recognition of prior learning – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.231; Schedule 4 Public Interest Criterion (PIC) 4001; rr 1.03, 1.15
CASES
Riaz v MIBP [2013] FCCA 2244
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of India, born in July 1992. He applied for the visa on 12 March 2018. 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 was not satisfied the applicant completed at least 2 academic years of study and that she met the Australian study requirement. The applicant seeks review of the delegate’s decision.
No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.
Relevant law
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 (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.
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 case is whether the applicant meets those requirements.
‘Australian study requirement’ has the meaning given by r.1.15F of the Regulations: r.1.03. Regulation 1.15F provides that:
(1)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:
(a)that are registered courses; and
(b)that…

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

AGLC: MALHOTRA (Migration) [2019] AATA 5076
Case: [2019] AATA 5076
Decision Date: 9 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 Temporary Graduate visa, Post-Study Work stream. The applicant sought review of a decision concerning their eligibility for this visa.

The central legal issue before the Tribunal was whether the applicant satisfied the Australian study requirement as stipulated in clause 485.231(3) of Schedule 2 to the Migration Regulations 1994. This requirement pertains to studies completed in an academic year, with a duration of at least 92 weeks, and considers the recognition of prior learning and the completion of courses concurrently.

The Tribunal found that the applicant met the criterion under clause 485.231(3). The reasoning for this finding is not detailed in the provided text, but it indicates that the Tribunal was satisfied that the applicant's studies, including any concurrent courses and recognition of prior learning, fulfilled the 92-week duration requirement within an academic year.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the applicant had met the Australian study requirement under clause 485.231(3), and the Minister was to proceed to consider the remaining criteria for the grant of 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

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Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231(3). 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(3) of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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