Syed Mokhsain (Migration) - [2020] AATA 5744

Syed Mokhsain (Migration) [2020] AATA 5744 (29 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Syed Muhammad Dayan Bin Syed Mokhsain
CASE NUMBER:  1825093
HOME AFFAIRS REFERENCE(S):          BCC2018/2513058
MEMBER:K. Chapman
DATE:29 November 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 29 November 2020 at 3:18pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Bachelor of Business Management/Bachelor of Information Technology – ‘immediately before the day the visa application was made’ – official academic completion date on the same day as the visa application was made – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC; Schedule 2, cl 485.231
CASES
Sapkota v MIAC [2012] FCA 981

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 27 August 2018 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 4 July 2018. 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 they were not satisfied that the applicant completed his study of the Bachelor of Business Management/Bachelor of Information Technology within the 6 months immediately prior to the visa application, therefore not meeting the requirements of cl.485.231 of Schedule 2 to the Regulations.
On 28 August 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. In addition, the applicant submitted a letter from the University of Queensland dated 28 August 2018, confirming that he completed the academic course requirements for his combined Degree study on 4 July 2018. Further, the applicant submitted additional documentation, such as Academic Transcripts, confirming the awards were conferred on 19 July 2018. The Tribunal is satisfied with the authenticity of the aforementioned material, which is consistent with the applicant’s claims in his visa application.
The applicant appeared by telephone before the Tribunal on 27 November 2020 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone. The applicant is a national of Malaysia. He is currently residing in his country of nationality.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.231 requires the applicant to hold a qualification or…

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: [2020] AATA 5744
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Syed Mokhsain for review of a decision not to grant him a Subclass 485 Skilled (Provisional) visa. The core of the dispute centred on whether Mr. Mokhsain met the requirements of clause 485.231 of the Migration Regulations 1994.

The Tribunal was required to determine whether Mr. Mokhsain held a qualification specified by the Minister, conferred by a specified educational institution, and whether his study for that qualification satisfied the 'Australian study requirement' in the six months immediately preceding his visa application. This involved interpreting the definitions of terms such as 'completed', 'academic year', and the conditions for satisfying the 'Australian study requirement' as outlined in the Regulations and relevant ministerial instruments.

The Tribunal found that while Mr. Mokhsain held a Bachelor of Business Management/Bachelor of Information Technology conferred by the University of Queensland, which were specified qualifications and institutions, he failed to satisfy the 'Australian study requirement'. Specifically, the Tribunal determined that his study did not meet the duration and academic year requirements stipulated by the Regulations and the instrument LIN19/085, which defines an academic year as at least 46 weeks.

Consequently, the Tribunal affirmed the decision not to grant Mr. Mokhsain the Subclass 485 visa, as he did not meet the necessary criteria for its grant.

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 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 (emphasis added). 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 the Bachelor of Business Management/Bachelor of Information Technology which are 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. In this case, the applicant’s qualification was conferred or awarded by the University of Queensland (CRICOS Provider code 00025B) which is an educational institution specified in that instrument. Accordingly, cl.485.231(2) is met.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 one 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)). 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: instrument LIN19/085.

Decision

Reasons for decision

On the basis of the matters outlined above, the Tribunal finds that the applicant does not satisfy cl.485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa and, as this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa. K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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