Vashisth (Migration) - [2024] AATA 133

Vashisth (Migration) [2024] AATA 133 (4 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rahul Vashisth
REPRESENTATIVE:  Mr Uday Kumar Mishra (MARN: 0215810)
CASE NUMBER:  2115256
HOME AFFAIRS REFERENCE(S):          BCC2020/1152228
MEMBER:Warren Stooke AM
DATE:4 January 2024
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 04 January 2024 at 8:04am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – Master of Data Science – course completion date – completion of the academic requirements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.231
CASES
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 21 October 2021 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 13 March 2020. 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, 485.232 and 485.233.
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 delegate considered that the applicant had not completed the course of study at the time of application for a 485 Graduate visa.
The applicant appeared before the Tribunal on 3 November 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant stated that it was understood the visa application was refused because his education was completed after he applied for his Temporary Visa.
The applicant stated that he had received a copy of the delegate’s decision and had read the decision.
The applicant stated that he had submitted a copy of the delegate’s decision to the Tribunal with the application for 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.…

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: [2024] AATA 133
Decision Date: 4 January 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr Rahul Vashisth against a decision of the Migration Review Tribunal regarding his application for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 Temporary Graduate visa under the Post-Study Work stream. The central dispute revolved around whether Mr Vashisth had satisfied the Australian study requirement as stipulated by clause 485.231 of the Migration Regulations 1994. The case was heard by Warren Stooke AM.

The primary legal issue before the Tribunal was to determine whether Mr Vashisth had completed his Master of Data Science course in the six months immediately preceding his visa application, thereby meeting the Australian study requirement. This involved interpreting the meaning of "completed" in the context of academic requirements and the relevant regulations.

The Tribunal considered evidence including a transcript from La Trobe University indicating a course finish date of 12 March 2020, and a letter from the university's Deputy Director of Academic Services. This letter clarified that while the final subject result was recorded on 12 March 2020, Mr Vashisth was officially deemed to have passed the course on 17 March 2020, after final checks. Applying the principle established in *Venkatesan v MIAC* [2008] FMCA 409, which defines course completion as achieving the necessary results to be awarded the degree, the Tribunal found that the administrative steps following the academic completion did not negate the fact that Mr Vashisth had met the academic requirements.

Consequently, the Tribunal concluded that Mr Vashisth met the criterion under clause 485.231. The matter was remitted to the Minister for reconsideration of the visa application, with the direction that the applicant had satisfied this specific criterion.

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. At the commencement of the hearing the Tribunal advised the applicant of the following:The issue in this case is whether the applicant pursuant to clause 485.231 has satisfied the Minister that at the time of application the applicant had completed a course of study in the period of 6 months immediately before the day the application was made. The Tribunal asked the applicant if he understood the issue in this case and the applicant responded: “Yes”. The applicant provided evidence of the grant of a Bridging Visa A on 13 March 2020 with health insurance requirement – 8501 that became active upon the end of the applicant’s Student (Temporary) Visa on 15 March 2020. The applicant provided evidence of an IELTS English language test undertaken on 22 February 2020 with an overall score of 6.5. The applicant provided evidence of health insurance with Allianz that commenced on 20 March 2020. The applicant provided evidence of a National Police Certificate dated 16 March 2020 for name check only that identified ‘no disclosable court outcomes’. The applicant stated at hearing that he was currently working with Accenture, where he has worked for 2 years and has a salary of $83,000. The applicant provided evidence of a transcript from La Trobe University that denoted the applicant’s course finished on 12 March 2020, together with correspondence of 8 November 2023 from the La Trobe University, Deputy Director, Academic Services, as follows:“This is to confirm that Mr Rahul VASHISTH has successfully completed the following qualification at La Trobe University. Course: SMDS - Master of Data Science Course Commencement Date: 05 March 2018 Course Completion Date (qualified for admission to the degree): 17 March 2020 Conferral Date: 13 May 2020 The result for Mr Vashisth’s final subject, STA5ATA, was recorded on 12 March 2020. On 17 March 2020, after final checks, Mr Vashisth was set to passed in the course SMDS - Master of Data Science. The language of instruction of this course was English. This course is registered under CRICOS as having a duration of 104 weeks. If you have any further enquiries, please do not hesitate to contact us at 1300 LA TROBE (1300 52 87623). Yours Sincerely Rachael Innes Deputy Director Academic Services, Student AdministrationLa Trobe University, Victoria, Australia” The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC[2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged 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.

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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