Singh (Migration) - [2022] AATA 819

Singh (Migration) [2022] AATA 819 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Priya Singh
REPRESENTATIVE:  Mrs Babban Sethi Lamba (MARN: 1803056)
CASE NUMBER:  2115663
HOME AFFAIRS REFERENCE(S):          BCC2020/14694581
MEMBER:Alison Mercer
DATE:4 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 4 April 2022 at 2:35pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – completion of relevant course within 6 months before application made – application made after completing course work and practical placements but before official notification of completion – anxiety about longer processing times and pending expiration of student visa – no assistance from agent or lawyer – course ‘completed’ on date results finalised by institution – no discretion to waive requirement – value of professional work in regional area to employer – possibility of seeking ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15F(1), (2), Schedule 2, cl 485.231(3)
CASES
Ali v MICMSMA [2021] FCA 1311

Sapkota v MIAC [2012] FMCA 137; [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 Home Affairs on 22 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 May 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 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, which required that (amongst other things) the applicant satisfied the Australian study requirement in the 6 month period immediately preceding the lodgment of the visa application. The delegate noted that the applicant stated in her application that she had completed a Bachelor of Arts degree in Australia between 18 July 2014 and 17 March 2018, and a Masters of Counselling degree in Australia between 22 February 2018 and 29 April 2020. The delegate found, however, that when the applicant provided her relevant academic transcripts and letters of completion, these indicated that she completed her Bachelor degree on 14 December 2017 (more than 6 months before she made her subclass 485 visa application) while the completion date for her Masters degree was 6 July 2020, after she made her subclass 485 visa application. As the applicant did not have any other relevant…

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: [2022] AATA 819
Decision Date: 4 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Singh, who sought review of a decision not to grant him a Skilled (Provisional) (Class VC) visa, specifically the post-study work stream of the Temporary Graduate visa (subclass 485). The central dispute concerned whether Mr Singh met the Australian study requirement for this visa.

The primary legal issue before the Tribunal was whether Mr Singh had satisfied the Australian study requirement within the six months immediately preceding his visa application. This requirement, as defined by regulation 1.15F(1) of the Migration Regulations, necessitates the completion of one or more degrees, diplomas, or trade qualifications from an Australian educational institution, undertaken as registered courses, completed over at least 16 calendar months, involving at least two academic years of study, with all instruction in English, and undertaken in Australia on a visa authorising study. The Tribunal also had to determine the precise date on which Mr Singh's course was considered "completed" for the purposes of this requirement.

The Tribunal reasoned that while Mr Singh held the requisite qualifications from specified educational institutions, the critical factor was the timing of his course completion. Regulation 1.15F(1) requires completion within the six months prior to the visa application. Mr Singh had applied after completing his coursework and practical placements, but before receiving official notification of his completion from the university. The Tribunal determined that the course was "completed" on the date his results were finalised by the institution, which fell outside the six-month window. The Tribunal found no discretion to waive this requirement and affirmed the original decision. The Tribunal noted that Mr Singh could seek ministerial intervention if he believed unique or compelling circumstances applied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF LAW, 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 Tribunal is satisfied from the evidence on the Department file that the applicant holds:·Bachelor of Arts degree from University Western Australia; and·Master of Counselling (by coursework) degree from Murdoch University, Western Australia. The Tribunal is satisfied that these are both qualifications 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 relevant instrument for this purpose is IMMI 13/031, which provides that approved educational institutions are Australian universities and non-university education providers registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and which offer courses at degree level and above. The Tribunal has examined the CRICOS and is satisfied that both the University of Western Australia and Murdoch University are both listed. Accordingly, the Tribunal is satisfied that the applicant’s qualifications were conferred or awarded by educational institutions specified in that instrument and thus cl.485.231(2) is met.Does the applicant 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. Under 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.

Decision

Reasons for decision

The Tribunal notes that it is open to the applicant to seek Ministerial intervention in the event of an unsuccessful review application at the Tribunal. Section 351 of the Act confers a personal discretion on the Minister for Immigration to intervene to grant a visa even where an applicant has been unsuccessful at the Tribunal, if he or she considers it appropriate to do so; generally, where there are unique or compelling circumstances. Guidelines and information about this process are provided on the Department’s website: Ministerial intervention (homeaffairs.gov.au)DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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