TANTIRITTISAK (Migration) - [2019] AATA 6395

TANTIRITTISAK (Migration) [2019] AATA 6395 (27 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Suphattra TANTIRITTISAK
CASE NUMBER:  1712330
HOME AFFAIRS REFERENCE(S):           BCC2017/1381886
MEMBER:Jade Murphy
DATE:27 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 criteria for a Subclass 485 visa:
·cl.485.221 of Schedule 2 to the Regulations
·cl.485.222 of Schedule 2 to the Regulations.
Statement made on 27 November 2019 at 10:01am

CASES
Talha v Minister for Immigration and Border Protection (2015) FCAFC 115
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 Immigration and Border Protection on 30 May 2017 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 14 April 2017. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s Master of Business as used to satisfy the Australian study requirement is closely related to her nominated occupation of Internal Auditor (221214).
On 24 November 2019 at 7:45pm, the night before the scheduled hearing, the applicant’s agent told the Tribunal the applicant would no longer be attending the hearing and requested the Tribunal make a decision on the papers.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the six months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.
Does the applicant meet the Australian study requirement?
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…

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 6395
Decision Date: 27 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Tantirittisak, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) in the Graduate Work stream. The dispute centred on whether the applicant met the requirements for the Australian study requirement and the close relationship between their qualification and nominated occupation.

The Tribunal was required to determine if the applicant satisfied the Australian study requirement as defined by regulation 1.15F(1), which involves completing registered courses in Australia over a specified period, with instruction in English, while holding a study-authorised visa. Additionally, the Tribunal had to assess whether the applicant's Master of Business degree, with a specialisation in Marketing, was closely related to their nominated occupation of Internal Auditor, as required by clause 485.222.

The Tribunal found that the applicant had completed a Master of Business degree and a Bachelor of Arts degree from Monash University, meeting the criteria for the Australian study requirement, including completion within the specified timeframe, duration, and language of instruction. Regarding the close relationship between the qualification and occupation, the Tribunal noted that more than half of the Master of Business units were in Finance, Economics, and Accounting. While the specific reasoning on the "closely related" aspect is not fully detailed, the Tribunal concluded that the applicant met both clause 485.221 and 485.222.

Consequently, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa to the Minister for reconsideration, with the direction that the applicant had met the criteria under clauses 485.221 and 485.222 of Schedule 2 to the Regulations.

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 The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the six months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.Does the applicant meet the Australian study requirement? 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; and·that were completed in a total of at least 16 calendar months; and·that were completed as a result of a total of at least 2 academic years study; and·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. As set out in the delegate’s decision, the applicant completed the following qualifications:·Master of Business from Monash University, completed 5 December 2016·Bachelor of Arts from Monash University, completed 14 July 2014. Evidence was provided to the Department confirming the above qualifications and based on that evidence the Tribunal finds the applicant completed a degree (Master of Business) in the six months immediately before the application was made and that it was a registered course with CRICOS code 079669B (as defined: see r.1.03); completed (as defined: see r.1.15F(2)) in a total of at least 16 calendar months; as a result of at least two academic years (as specified) study specifically 104 weeks; for which all instruction was conducted in English; and whilst holding a visa authorising study. As a result, the Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately preceding the date of the visa application.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. 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 criteria for a Subclass 485 visa:·cl.485.221 of Schedule 2 to the Regulations·cl.485.222 of Schedule 2 to the Regulations.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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