Sinatka (Migration) - [2025] ARTA 1639

SINATKA (MIGRATION) [2025] ARTA 1639 (23 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Ms Ioanna Sinatka
Mr Dhionis Zaci
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2506389

Tribunal:General Member J Murphy
Place:Melbourne
Date: 23 July 2025
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 of Schedule 2 to the Regulations

Statement made on 23 July 2025 at 10:44am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification completed within six months before application made – first letter of completion gives date more than six months before, and second less than – requirements deemed met on later date – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(a), (b)(iii)
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)
CASE
Ali v MICMSMA [2021] FCA 1311

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2025 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 28 November 2024. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had completed their qualification used to satisfy the Australian study requirement in the six months immediately before the day the visa application was made.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CAN A DECISION BE MADE WITHOUT A HEARING?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) sets out the circumstances where the Tribunal may reach a decision without a hearing.
To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met.
Paragraphs 106(3)(a) and (b) of the ART Act sets out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour or the applicant or the applicant requests the Tribunal to make its decision without holding the hearing.
In this case, the Tribunal is satisfied that both paragraphs 106(3)(a) and 106(3)(b)(ii) have been met, as the only parties to the proceeding are the applicant and a non-participating party; and the decision is wholly in favour or the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.231 requires the applicant to hold a qualification…

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: [2025] ARTA 1639
Decision Date: 23 July 2025

CaseChat Overview and Summary

The case of Sinatka involves a dispute over the eligibility of the applicant for a subclass 485 (Temporary Graduate) visa under the Migration Act 1958. The primary issue before the tribunal was whether the applicant satisfied the conditions set out in clause 485.231 of the Migration Regulations 1994, particularly the Australian study requirement. The tribunal was also tasked with determining whether the decision to deny the visa could be made without a hearing under section 106 of the Administrative Review Tribunal Act 2024 (Cth). The applicant argued that their qualifications and study period complied with the regulations, but discrepancies in the dates provided in the completion letters of their qualification raised questions about the timing of their studies in relation to the visa application.

The tribunal examined whether clause 485.231 applied to the applicant, considering that the clause does not apply to those who meet the requirements of clauses 485.232, 485.233, 485.234, or 485.235. The tribunal found that the applicant did not meet the criteria of these clauses and hence clause 485.231 did apply. It was also established that the applicant held a specified qualification, a Master of Business Administration, awarded by an institution specified by the Minister, thus satisfying the relevant clause. However, the tribunal needed to determine if the applicant's studies satisfied the Australian study requirement within the stipulated time frame. The tribunal noted that the applicant's qualification completion dates were ambiguous, with one letter indicating a date more than six months before the application and another less than six months before. The tribunal concluded that the decision was to be based on the later date, which was within the required period.

The tribunal decided that the matter should be remitted for reconsideration, considering that clause 485.231 required the applicant’s study to satisfy the Australian study requirement within six months before the visa application. The tribunal found it appropriate to remit the decision for reconsideration, as the evidence presented was inconclusive about whether the applicant's study period aligned with the regulation's requirements. Additionally, the tribunal was satisfied that it could make a decision without a hearing, as the proceeding involved only the applicant and a non-participating party, and the decision was wholly in favour of the applicant.

In conclusion, the tribunal remitted the decision for reconsideration, allowing the applicant an opportunity to provide further evidence or clarification regarding the timing of their qualification studies in relation to the visa application. The tribunal’s decision was based on the need for a more precise understanding of the applicant’s compliance with the Australian study requirement as stipulated by clause 485.231.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this case, the Tribunal is satisfied that both paragraphs 106(3)(a) and 106(3)(b)(ii) have been met, as the only parties to the proceeding are the applicant and a non-participating party; and the decision is wholly in favour or the applicant.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, and for the applicant's study for the qualification or qualifications to have satisfied the ‘Australian study requirement’ in the six months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within six months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.Does cl 485.231 apply to the applicant? Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.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. In this case, the applicant holds a Master of Business Administration which is 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. In this case, the applicant’s qualification was conferred or awarded by Torrens University Australia 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) requires that the applicant’s study for the qualification or qualifications met the ‘Australian study requirement’ in the six months immediately before the day the visa application was made or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within six months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CAN A DECISION BE MADE WITHOUT A HEARING? Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) sets out the circumstances where the Tribunal may reach a decision without a hearing. To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met. Paragraphs 106(3)(a) and (b) of the ART Act sets out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour or the applicant or the applicant requests the Tribunal to make its decision without holding the hearing. In this case, the Tribunal is satisfied that both paragraphs 106(3)(a) and 106(3)(b)(ii) have been met, as the only parties to the proceeding are the applicant and a non-participating party; and the decision is wholly in favour or the applicant.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, and for the applicant's study for the qualification or qualifications to have satisfied the ‘Australian study requirement’ in the six months immediately before the day the visa application was made (cl 485.231(3)(a)) or, in the 12 months immediately before the day the visa application was made if the applicant was unable to apply within six months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)). Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: (cl 485.231(1A). The issue in the present case is whether cl 485.231 applies to the applicant, and if so, whether the applicant meets those requirements.Does cl 485.231 apply to the applicant? Clause 485.231 does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235: cl 485.231(1A). There is no evidence, and the applicant has not claimed, to have held a Subclass 485 visa in the Post-Study Work stream or the Replacement stream when the application that is under review was made. Accordingly, the applicant does not meet the requirement in cl 485.232(1)(a), 485.233(1)(a), 485.234(1)(b), or 485.235(1)(b). The applicant therefore does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and cl 485.231 does apply.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. In this case, the applicant holds a Master of Business Administration which is 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?

Ratio Decidendi

Legal Principle Established

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