PAUDEL (Migration) - [2019] AATA 3301

PAUDEL (Migration) [2019] AATA 3301 (23 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Bamdev PAUDEL
Mrs SITA MAHARJAN
CASE NUMBER:  1813127
HOME AFFAIRS REFERENCE(S):          BCC2018/1146438
MEMBER:Kira Raif
DATE:23 July 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 23 July 2019 at 8:07am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – study duration – Master of Business Administration (MBA) – Master of Professional Accounting (MPA) – two distinct qualifications – each being of 78 weeks duration – completed concurrently – completed the same subjects to obtain the two qualifications – registered separately on CRICOS – recognition of prior learning – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F; Schedule 2, cl 485.231
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 19 April 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (‘the applicant’) is a national of Nepal born in April 1989. He applied for the visas on 10 March 2018. The application includes his partner. The delegate refused to grant the visas 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 he 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…

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: PAUDEL (Migration) [2019] AATA 3301
Case: [2019] AATA 3301
Decision Date: 23 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr. Paudel for a Skilled (Provisional) (Class VC) visa, specifically under the Subclass 485 (Temporary Graduate) visa, Post-Study Work stream. The central dispute concerned whether Mr. Paudel satisfied the Australian study requirement, as defined by clause 485.231(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

The Tribunal was required to determine if Mr. Paudel's completion of two distinct Master's degrees, a Master of Business Administration (MBA) and a Master of Professional Accounting (MPA), each of 78 weeks duration, and undertaken concurrently, met the Australian study requirement. This involved considering whether the concurrent study of the same subjects for both qualifications, despite each being registered separately on CRICOS, constituted a valid fulfilment of the requirement, particularly in light of any recognition of prior learning.

The Tribunal found that Mr. Paudel met the criterion specified in cl.485.231(3). The reasoning, though not fully detailed in the provided text, appears to have accepted that the concurrent completion of the two qualifications, registered separately on CRICOS, satisfied the study duration requirement. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that this specific criterion for the Subclass 485 visa had been met.

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 RegulationsKira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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