Sitienei (Migration) - [2019] AATA 4668

Sitienei (Migration) [2019] AATA 4668 (9 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Gloria Jepkirui Sitienei
CASE NUMBER:  1925807
HOME AFFAIRS REFERENCE(S):           BCC2019/3535215
MEMBER:R. Skaros
DATE:9 October 2019
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 09 October 2019 at 2:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement in 6 months preceding application – error in University’s documentation – requirement satisfied – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231(3)
CASE
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 26 August 2019 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 15 July 2019. 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 delegate was not satisfied that the applicant had completed the Australian study requirement in the 6 months immediately preceding the date of the visa application.
In response to a request for further information regarding her studies in Australia, the Tribunal received submissions and supporting documents, to which it has had regard further below. The Tribunal did not consider it necessary to have a hearing in this case as it was able to make a favourable decision on the evidence before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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’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…

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: Sitienei (Migration) [2019] AATA 4668
Case: [2019] AATA 4668
Decision Date: 9 October 2019

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Post-Study Work stream. The applicant sought review of a decision concerning their eligibility for the visa. The Tribunal was required to determine whether the applicant satisfied the Australian study requirement as stipulated by clause 485.231 of the Migration Regulations 1994.

The central legal issue was whether the applicant's study for a specified qualification met the 'Australian study requirement' in the six months immediately preceding their visa application. This requirement, as defined by regulation 1.15F(1), necessitates the completion of registered courses undertaken in Australia, totalling at least 16 calendar months and involving at least two academic years of study, with all instruction conducted in English. The definition of 'completed' in relation to a qualification means meeting the academic requirements for its award.

The Tribunal reasoned that, in accordance with the principles established in *Riaz v MIBP*, the 'Australian study requirement' is satisfied if an applicant has completed courses registered under the *Education Services for Overseas Students Act 2000* with a duration of at least 92 weeks. This is irrespective of whether the completion involved credits or recognition of prior learning, provided the academic requirements for the award were met. The Tribunal concluded that the applicant met clause 485.231(3) based on this interpretation.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant satisfies the Australian study requirement under clause 485.231(3). 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEClause 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’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. Under r.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. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). An ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000: LIN 19/085. For the purposes of this definition, as long as a course is registered under the ESOS Act as having a duration of 92 weeks, and an applicant has ‘completed’ that course, r.1.15F(1)(c) will be satisfied, regardless of whether completion of the course involved benefit from credits, recognition of prior learning or the like.[1] The Court’s reasoning in Riaz v MIBP suggests that this will be the case even if the prior study was not undertaken in Australia. The Court held that ‘study’ in r.1.15(1)(c) denotes the activities educational institutions prescribe for the award of a degree, diploma or trade qualification and it is for those institutions to specify what is required for a person to complete a course that will result in the conferral of a relevant qualification, including the recognition of prior learning and course credits. Accordingly, the relevant question for r.1.15F(1)(c) is whether an applicant for the visa had ‘completed’, as defined in r.1.15F(2), a course or courses that had been registered under the ESOS Act as having a duration of at least 92 weeks.[2] [1] See Riaz v MIBP [2013] FCCA 2244 (Manousaridis J, 20 December 2013).[2] Riaz v MIBP [2013] FCCA 2244 (Manousardis J, 20 December 2013) at [41] & [50].

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the first named 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 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.R. SkarosSenior Member

Ratio Decidendi

Legal Principle Established

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