Soerensen (Migration) - [2022] AATA 2694

Soerensen (Migration) [2022] AATA 2694 (1 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Nadia Schjoetz Soerensen
REPRESENTATIVE:  Mr Walson Mathew (MARN: 1460591)
CASE NUMBER:  1916648
HOME AFFAIRS REFERENCE(S):          BCC2019/1178340
MEMBER:Wan Shum
DATE:1 August 2022
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 of Schedule 2 to the Regulations

Statement made on 1 August 2022 at 12:19pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement satisfied within 6 months before visa application made – academic requirements completed before application made but certificate of completion issued after – administrative delay in processing results and issuing certificate – previous visa close to expiring – 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)
CASES
Sapkota v MIAC [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 6 June 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the Subclass 485 visa on 8 March 2019. 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 evidence before it indicated that the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations which requires satisfaction of the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.
The applicant sought review of that decision and was represented in relation to the review.
The applicant appeared before the Tribunal on 28 June 2022 by videoconference using Microsoft Teams to give evidence and present arguments. The representative was available to assist throughout by videoconference.
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.
The applicant declared on her visa application form that the most recently completed academic qualification in Australia was a Master of…

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.

Keep reading for free

Create a free CaseChat account to read Soerensen (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 2694
Decision Date: 1 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485. The central dispute concerned whether the applicant satisfied the Australian study requirement within the six months immediately preceding her visa application, as stipulated by clause 485.231 of the relevant regulations.

The Tribunal was required to determine if the applicant held a qualification conferred or awarded by a specified educational institution, and crucially, whether her study for that qualification met the Australian study requirement within the specified timeframe. The applicant had provided evidence of completing a Master of International Studies from the University of Sydney, with the degree requirements completed by 21 March 2019. However, the official certificate of completion was issued after the visa application date, and an unofficial academic result indicated a conferral date of 14 May 2019.

The Tribunal reasoned that the applicant had met the requirements of subclauses 485.231(1) and (2) as she held a Master's degree from the University of Sydney, both of which were specified in the relevant ministerial instruments. Regarding the Australian study requirement, the Tribunal found that the applicant had completed the academic requirements for her degree by 21 March 2019, which fell within the six months prior to her visa application. The Tribunal acknowledged the administrative delay in issuing the formal certificate of completion, but concluded that the academic completion date was the operative date for satisfying the study requirement.

Consequently, the Tribunal remitted the visa application for reconsideration, directing that the applicant had met the criterion under clause 485.231. The Minister was to consider the remaining criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 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. The applicant declared on her visa application form that the most recently completed academic qualification in Australia was a Master of International Studies from the University of Sydney from 1 March 2017 to 11 February 2019. As evidence of this, the applicant provided a statement from University of Sydney dated 21 March 2019 which states that she has completed the requirements for her degree and been awarded a Master of International Studies as at 21 March 2019. The completion letter includes a statement that the degree is taught in English and normally requires the completion of 96 credit points where 48 credit points is a usual fulltime load for one academic year. The letter includes enrolment details from 6 March 2017 to 19 November 2018 as follows: An unofficial online academic result printed on 22 March 2019, reflects the award date for the Master of International Studies was 21 March 2019 and the award conferral date as 14 May 2019. The applicant later provided another letter from the University dated 2 May 2019 which states that she completed the Master of International Studies on 21 March 2019; having commenced her studies on 6 March 2017 and the expected graduation is in May 2019. 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 applicant holds a Master degree which is a qualification 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. In this case, the applicant’s qualification was conferred or awarded by University of Sydney which the Tribunal finds is an Australian university registered on the Commonwealth Register of Institutions and Courses for Overseas Students and offers courses at degree level and above. It is therefore an educational institution specified in the relevant instrument and 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.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets cl 485.231. 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 of Schedule 2 to the Regulations.Wan ShumMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.