Ong-Palsson (Migration) - [2019] AATA 760

Ong-Palsson (Migration) [2019] AATA 760 (3 January 2019)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Emma Ong-Palsson
CASE NUMBER:  1621619
DIBP REFERENCE(S):  BCC2016/3086146
MEMBER:Warren Stooke
DATE OF DECISION:  3 January 2019
DATE CORRIGENDUM
SIGNED:9 January 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The words ‘date of decision: 3 January 2018’ should be replaced with words ‘date of decision: 3 January 2019’.
Warren Stooke
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Emma Ong-Palsson
CASE NUMBER:  1621619
HOME AFFAIRS REFERENCE(S):          BCC2016/3086146
MEMBER:Warren Stooke AM
DATE:3 January 2018
PLACE OF DECISION:  Melbourne
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 03 January 2019 at 5:23pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement completed in the 6 months prior to visa application – no further requirements of an academic nature – advice regarding the completion of studies – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.231, rr.1.03, 1.15, 2.26
CASES
Sapkota v MIAC [2012] FCA 981
Venkatesan v MIAC [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 Minister for Immigration and Border Protection on 2 December 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 September 2016. 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
The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the applicant had completed her course on 21 September 2016, based upon the university’s academic transcript, which was five days after the applicant lodged her application .
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which includes cl.485.221 of Schedule 2 to the Regulations, relying on completion of a number of qualifications in Australia. Clause 485.221 requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the visa application was made.
Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’…

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: [2019] AATA 760
Decision Date: 3 January 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by the applicant, Ong-Palsson, concerning a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The core of the dispute revolved around whether the applicant had satisfied the Australian study requirement within the six months immediately preceding their visa application.

The Tribunal was required to determine two key issues: first, whether the applicant met the Australian study requirement, and second, if so, whether this requirement was satisfied in the six-month period prior to the visa application. This involved assessing whether the applicant held a qualification specified by the Minister, awarded by a specified educational institution, and whether the study for that qualification met the Australian study requirement within the relevant timeframe.

In its reasoning, the Tribunal found that the applicant held a PhD in Medicine, a qualification specified by the Minister. Furthermore, the Tribunal was satisfied that the applicant's studies were completed on 9 September 2016, when Associate Professor C.A. Reid advised the applicant of their successful thesis submission. The Tribunal considered that subsequent administrative steps, such as the formal conferral of the qualification on 21 September 2018, did not negate the applicant's actual completion of academic requirements on 9 September 2016. This date fell within the six months immediately before the visa application was made, thus satisfying the criteria.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets criterion cl.485.231 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that the issues to be determined by the Tribunal are:(a) Does the applicant meet the Australian study requirement? And, if so,(b) Was the Australian study requirement satisfied in the period of six months immediately before the day of the visa application?CONSIDERATION OF CLAIMS AND EVIDENCE 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.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 Ph.D. Medicine, which is a qualification specified in that instrument. 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 applicant provided evidence that on 9 September 2016, Associate Professor C.A. Reid, the Chair of Examiners, at The Florey Institute, advised the applicant that he was happy to pass the thesis submitted by the applicant and congratulated the applicant regarding the completion of studies. [Tribunal Folio – 34]. As such, the Tribunal is satisfied that the criteria enunciated in Venkatesan v MIAC[2008] FMCA 409 and Sapkota v MIAC[2012] FCA 981 to establish when a course is completed have direct application and relevance in this case. Consistent with the views of Burchardt FM, the Tribunal acknowledges that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. Hence, the administrative act of conferring the qualification on 21 September 2018 would not, in the Tribunal’s view, prejudice the applicant’s actual completion of studies that Associate Professor Reid acknowledged on the 9 September 2016. On this basis, the Tribunal is satisfied that for the purposes of r.1.15F(2) of the Regulations, the applicant completed the course on 9 September 2016, which is seven days before the applicant submitted her application and within six months of the completion of her course/thesis. Accordingly, cl.485.231(2) is met.Does the applicant’s study for the specified qualification meet the Australian study requirement? Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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