Wangmo (Migration) - [2019] AATA 3898

Wangmo (Migration) [2019] AATA 3898 (2 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Sonam Keldee Wangmo
CASE NUMBER:  1915454
HOME AFFAIRS REFERENCE(S):           BCC2019/1287896
MEMBER:Nicola Findson
DATE:2 September 2019
PLACE OF DECISION:  Perth
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 02 September 2019 at 9:27am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Post-Study Work stream – Australian study requirement met in required timeframe – holds specified qualification – Bachelor of Engineering – qualification awarded by university specified in instrument – registered course – student visa holder – instruction conducted in English – course duration 2 academic years – completed in 16 months – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), 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 28 May 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 14 March 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 because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met the Australian study requirement.
The Tribunal reviewed the decision and information contained in both the Tribunal and Departmental files and is satisfied that the applicant meets the requirements of r.485.231. On that basis, a decision has been made on the papers. There was no need for a hearing as the matter is being remitted.
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…

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 3898
Decision Date: 2 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Wangmo, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, Post-Study Work stream. The dispute centred on whether the applicant met the requirements of clause 485.231 of Schedule 2 to the Migration Regulations 1994, which pertains to the Australian study requirement for this visa subclass.

The Tribunal was required to determine if the applicant held a specified qualification, if that qualification was awarded by a specified educational institution, and if the applicant's study for that qualification met the Australian study requirement within the prescribed timeframe. Specifically, the Tribunal needed to assess whether the applicant's Bachelor of Engineering qualification was of a kind specified by the Minister, conferred by an eligible institution, and completed in accordance with the regulations regarding course duration, academic years of study, instruction in English, and the applicant's visa status during study.

The Tribunal reasoned that the applicant's Bachelor of Engineering (Civil) from Edith Cowan University satisfied the criteria for a specified qualification awarded by a specified educational institution, as both the qualification type and the university (registered on CRICOS) were recognised under the relevant instruments. Furthermore, the Tribunal found that the applicant's study met the Australian study requirement, having been completed in 16 months, representing at least two academic years of study, with all instruction in English, and undertaken while the applicant held a student visa in Australia.

Consequently, the Tribunal concluded that the applicant met the requirements of 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.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, which specifies the following qualifications: (a)Bachelor Degree;(b)Bachelor (Honours) Degree;(c)Masters by Coursework Degree;(d)Masters by Research Degree;(e)Masters (Extended) Degree and/or;(f)Doctoral Degree.In this case, the applicant holds a Bachelor of Engineering (Civil) from Edith Cowan University, Western Australia, 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 that specifies for the purposes of cl.485.231(2) that Australian universities and non-university education providers are eligible educational institutions if they are registered on the Commonwealth Register of Institutions and Course for Overseas Students (CRICOS) and offer courses at degree level and above. The Tribunal has confirmed that Edith Cowan University is a CRICOS registered provider: CRICOS Code 00279B. The Tribunal finds that Edith Cowan University offers courses at degree level and above. In this case, the Tribunal is satisfied that the applicant’s qualification was conferred or awarded by an educational institution specified in the relevant 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 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, ·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.

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.Nicola FindsonMember

Ratio Decidendi

Legal Principle Established

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