Mohd Ammarr Bin Mohd Aripin (Migration) - [2024] AATA 290

Mohd Ammarr Bin Mohd Aripin (Migration) [2024] AATA 290 (9 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Mohd Ammarr Bin Mohd Aripin
CASE NUMBER:  2116822
HOME AFFAIRS REFERENCE(S):          BCC2020/2356657
MEMBER:K. Chapman
DATE:9 February 2024
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 09 February 2024 at 5:27pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – courses completed within 6 months before visa application – date of satisfying the academic requirements for the award – university staff notified completion of academic requirements – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15, 2.26
CASES
Ali v MICMSMA [2021] FCA 1311
Sapkota v MIAC [2012] FCA 981
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 2 November 2021, to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant applied for the visa on 23 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 matter, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.231, due to a lack of satisfaction that his qualification of the Doctor of Philosophy was completed in the 6 months ending immediately before the day the visa application was made. Therefore, the delegate was not satisfied the applicant met the ‘Australian study requirement’ in the required period prior to the visa application being lodged. The Tribunal notes that the applicant completed his Doctorate at the Queensland University of Technology (QUT). He submitted to the Tribunal a raft of documentation from that institution regarding the completion date of his studies.
The applicant appeared by telephone before the Tribunal on 30 January 2024 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by telephone. The Tribunal was impressed by the applicant’s direct and fulsome evidence provided at the hearing. Accordingly, the Tribunal finds the applicant to have provided honest evidence and it is afforded high weight.
The applicant requested time to lodge post-hearing material. The Tribunal granted this request. Following the hearing, the applicant submitted a further letter from QUT regarding his study completion date.

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.

Keep reading for free

Create a free CaseChat account to read Mohd Ammarr Bin Mohd Aripin (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 290
Decision Date: 9 February 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 Temporary Graduate visa, Post-Study Work stream. The applicant, Mohd Ammarr Bin Mohd Aripin, sought review of a decision concerning his eligibility for this visa. The Administrative Appeals Tribunal, constituted by K. Chapman, was tasked with determining whether the applicant met the Australian study requirement as stipulated by the relevant regulations.

The primary legal issue before the Tribunal was whether the applicant satisfied the Australian study requirement for the Subclass 485 visa. This requirement, as outlined in clause 485.231 of Schedule 2 to the Migration Regulations 1994, mandates that an applicant must hold a specified qualification conferred by a specified educational institution and have met the 'Australian study requirement' in the six months immediately preceding the visa application. The Tribunal was required to assess if the applicant's Doctor of Philosophy from Queensland University of Technology met these criteria, particularly the definition of 'completed' in relation to academic requirements.

The Tribunal reasoned that the applicant satisfied the initial criteria of holding a specified qualification (Doctor of Philosophy) conferred by a specified educational institution (Queensland University of Technology). The core of the dispute revolved around the interpretation of the 'Australian study requirement' under regulation 1.15F. This regulation defines satisfying the requirement as completing registered courses totalling at least 16 calendar months and at least two academic years of study, with all instruction in English, undertaken in Australia while holding a study-authorised visa. The Tribunal noted that 'completed' means having met the academic requirements for the award of the qualification. Although the applicant's qualification was conferred by a specified institution, the Tribunal found that the crucial element of when the applicant met the academic requirements for the award of his degree was not definitively established.

Consequently, 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, but the Minister was to consider the remaining criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 In the circumstances relevant to this review, cl 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 review is whether the applicant meets those requirements.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 LIN 23/023. In this matter, the applicant holds a Doctor of Philosophy which is a qualification specified in that instrument. 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 LIN 23/021. In this matter, the applicant’s qualification was conferred or awarded by Queensland University of Technology (QUT) which is an educational institution specified in that instrument. Therefore, the applicant satisfies cl 485.231(2). Does the applicant meet the Australian study requirement? Clause 485.231(3)(a), as is relevant to this review, requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. Pursuant to 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. ‘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 review, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: LIN 19/085.

Decision

Reasons for decision

Having regard to all relevant matters, the Tribunal finds that the applicant satisfies cl 485.231. The appropriate course of action is, therefore, 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.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.