TEO (Migration) - [2019] AATA 4588

TEO (Migration) [2019] AATA 4588 (18 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr KOK LEONG TEO
CASE NUMBER:  1822712
HOME AFFAIRS REFERENCE(S):           BCC2018/2418867
MEMBER:Kira Raif
DATE:18 September 2019
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(3) of Schedule 2 to the Regulations

Statement made on 18 September 2019 at 4:59pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – study requirement – completed two courses concurrently – fulfilled 2 academic years of study – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.231, r 1.15F
CASES

Riaz v MIBP [2013] FCCA 2244
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 19 July 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 is a national of Malaysia, born in January 1988. The applicant applied for the visa on 5 June 2018. The delegate refused to grant the visas because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant completed at least 2 academic years of study and that he met the Australian study requirement. The applicant seeks review of the delegate’s decision.
No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.
Relevant law
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.
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.
‘Australian study requirement’ has the meaning given by r.1.15F of the Regulations: r.1.03. Regulation 1.15F provides that:
(1)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:
(a)that are registered courses; and
(b)that were completed in a total of at least 16 calendar months; and
(c)that were completed as a result of a total of at…

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

AGLC: TEO (Migration) [2019] AATA 4588
Case: [2019] AATA 4588
Decision Date: 18 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of TEO for a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa. The dispute centred on whether TEO had satisfied the study requirement stipulated in the Migration Regulations.

The primary legal issue before the Tribunal was the interpretation and application of clause 485.231(3) of Schedule 2 to the Migration Regulations, which pertains to the completion of at least two academic years of study in Australia. The Tribunal was required to determine if TEO's completion of two courses concurrently constituted fulfilment of this requirement.

The Tribunal reasoned that TEO had indeed met the study requirement under clause 485.231(3). By completing two courses concurrently, TEO had fulfilled the necessary two academic years of study. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a specific direction that TEO met this particular criterion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets cl.485.231(3). 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(3) of Schedule 2 to the RegulationsKira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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