Tan (Migration) - [2019] AATA 5158

Tan (Migration) [2019] AATA 5158 (12 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Swee Pin Dominic Tan
CASE NUMBER:  1922077
HOME AFFAIRS REFERENCE(S):           BCC2019/2241431
MEMBER:Warren Stooke AM
DATE:12 November 2019
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 12 November 2019 at 1:44pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – course completion date – conferral of qualification – conclusion of formal course work period – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231
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 8 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 24 April 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 on the basis that the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the application for the Subclass 485 Post Graduate visa was lodged prior to completion of the course work undertaken.
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 of Physiotherapy, 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…

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: [2019] AATA 5158
Decision Date: 12 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Tan, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Post-Study Work stream. The central dispute concerned whether Mr Tan satisfied the Australian study requirement for the visa, specifically in relation to the course completion date for his Master of Physiotherapy qualification.

The Tribunal was required to determine whether Mr Tan held a qualification specified by the Minister, whether that qualification was conferred by a specified educational institution, and crucially, when he satisfied the Australian study requirement, which mandates completion of study within the six months immediately preceding the visa application. This involved interpreting the meaning of "course completion date" in the context of the applicant's academic and administrative milestones.

The Tribunal reasoned that while the applicant held a specified qualification from a specified institution, the precise date of course completion was key. Evidence from Curtin University indicated that the applicant's formal coursework concluded on 11 April 2019, with subsequent dates representing administrative steps such as advice and the issuance of an administrative notice. Applying principles from cases such as *Venkatesan v MIAC* and *Sapkota v MIAC*, the Tribunal found that purely administrative acts did not negate the actual completion of academic effort. Therefore, the course completion date was determined to be 11 April 2019, which satisfied the requirement of being within six months of the visa application.

Consequently, the Tribunal found that Mr Tan met the criterion under clause 485.231 of Schedule 2 to the Regulations. The matter was remitted to the Minister for reconsideration of the remaining visa criteria.

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 of Physiotherapy, 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 Register of Instruments - Skilled visas. In this case, the applicant’s qualification was conferred or awarded by Curtain University CRICOS Provider Code: 00301J, which is an educational institution specified in that instrument. The applicant provided evidence to the Tribunal on 12 September 2019, from Ms Trudi Fischer, Executive Lead for Student Engagement/ School of Physiotherapy and Exercise Science in the Faculty of Health Sciences at Curtin University, in the form of confirmation of when; the applicant completed the requisite course work for the award of the qualification of Master of Physiotherapy. In this regard, Ms Fischer stated that the applicant’s clinical placement began within the Quarter 1 2019 study period, however concluded outside of this timeframe on 11 April 2019 and the advice to the student occurred on 24 April 2019, with the administrative notice being issued to the applicant of 29 April 2019. As such, the Tribunal is satisfied that the criteria enunciated in Venkatesan v MIAC[2008] FMCA 409 and Sapkota v MIAC[2012] FCA 981 to establish when a course is completed have direct application and relevance in this case. Consistent with the views of Burchardt FM, the Tribunal acknowledges that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. Hence, the administrative act of conferring the qualification on 29 April 2019 would not, in the Tribunal’s view, prejudice the applicant’s actual completion of studies that Ms Fischer stated to be on 11 April 2019, which was at the conclusion of the formal course work period. On this basis, the Tribunal is satisfied that for the purposes of r.1.15F(2) of the Regulations, the applicant completed the course on 11 April 2019, which was thirteen days before the applicant submitted his application and within six months of the completion of his course clinical placement period.

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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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