Qureshi (Migration) - [2018] AATA 5343

Qureshi (Migration) [2018] AATA 5343 (2 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ahsan Mehmood Qureshi
CASE NUMBER:  1612368
HOME AFFAIRS REFERENCE(S):           BCC2016/2302554
MEMBER:Kira Raif
DATE:2 November 2018
PLACE OF DECISION:  Sydney
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

Statement made on 02 November 2018 at 8:18am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Business Administration – course completion date – letter of completion issued on same day as visa application – date examination marking was completed and results ratified – academic effort or evaluation of such effort – publication of results – purely administrative steps – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231
CASES
Venkatesan v MIAC [2008] FMCA 409
Sapkota v MIAC [2012] FMCA 137
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 25 July 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 is a national of Pakistan born in June 1988. He applied for the visa on 8 July 2016. 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’s study for the qualification satisfied the Australian study requirement in the 6 months before the application was made. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing and has not presented any submissions to the Tribunal. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
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…

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: [2018] AATA 5343
Decision Date: 2 November 2018

CaseChat Overview and Summary

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

The primary legal issue before the Tribunal was to determine the correct interpretation of the "course completion date" for the purpose of satisfying the Australian study requirement. This involved ascertaining whether the date on which a letter of completion was issued, which coincided with the date of the visa application, constituted the completion date, or if the date on which examination marking was completed and results ratified was the relevant date. The Tribunal had to consider whether academic effort or the evaluation of such effort, culminating in the publication of results, was the determinative factor.

The Tribunal reasoned that the issuance of a letter of completion on the same day as the visa application, while seemingly administrative, did not necessarily reflect the completion of the academic effort or evaluation required by the Australian study requirement. It distinguished between purely administrative steps, such as the formal issuance of a document, and the substantive completion of academic assessment. The Tribunal concluded that the applicant had met the criterion under cl.485.231(3).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a specific direction that the applicant meets the criterion stipulated in cl.485.231(3) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the 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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