Sultan (Migration) - [2022] AATA 2300

Sultan (Migration) [2022] AATA 2300 (7 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Khalil Ahmed Sultan
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1918725
HOME AFFAIRS REFERENCE(S):          BCC2019/1302757
MEMBER:Amanda Mendes Da Costa
DATE:7 July 2022
PLACE OF DECISION:  Melbourne
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 7 July 2022 at 9.17am

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 21 June 2019 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 14 March 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 (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 because the only Australian study evidence provided by the applicant was not completed within the sixth month period ending the day before his visa application was lodged.
On the basis of the material in both the Department’s and Tribunal’s files (including written submissions dated 9 September 2021), and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour. It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.
The applicant was represented in relation to the review.
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 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’s 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…

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 2300
Decision Date: 7 July 2022

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 Temporary Graduate visa, post-study work stream. The applicant sought review of a decision concerning their eligibility for this visa. The case was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the Australian study requirement as stipulated by clause 485.231 of Schedule 2 to the Migration Regulations 1994. This requirement mandates that the applicant's study for a specified qualification must have been completed within the six months immediately preceding the day on which the visa application was made. The Tribunal was required to determine the meaning of "completed" in this context and whether the applicant's academic achievements met this criterion.

The Tribunal considered the definition of "completed" under regulation 1.15F(2), which states it means having met the academic requirements for the award of the qualification. The applicant provided an International Notification of Completion from Victoria University, indicating they had satisfied the requirements for a Master of Business Analytics (Professional) degree. The Tribunal found that the applicant held a specified qualification conferred by a specified educational institution and that their study met the Australian study requirement. The Tribunal concluded that the applicant met the criteria under clause 485.231.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had satisfied the criterion under clause 485.231. The Minister was 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 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 applicant holds a master’s 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 Victoria University which is an educational institution specified in that instrument. Accordingly, 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. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 1.15F(2)). For the purposes of this case, one ‘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. The Tribunal has been provided with an International Notification of Completion (INC) issued by Victoria University which shows that the applicant has satisfied the requirements for a Master of Business Analytics (Professional) degree and that he commenced the course on 25 July 2017 and completed the course on 22 February 2019.

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.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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