YIP (Migration) - [2019] AATA 2294

YIP (Migration) [2019] AATA 2294 (31 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Hoi Ying YIP
CASE NUMBER:  1820680
HOME AFFAIRS REFERENCE(S):           BCC2018/1027160
MEMBER:Katie Malyon
DATE:31 May 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 31 May 2019 at 4:02 pm

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2 cls 483.231, 485.111, 485.231, rr 1.03, 1.15F, 2.26AC(6)
CASES

Sapkota v MIAC [2012] FCA 981

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 June 2018 to refuse to grant the applicant, Miss Hoi Ying Yip, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
Ms Yip applied for the visa on 4 March 2018. 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, Ms Yip is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.231 of Schedule 2 to the Regulations.
The delegate refused to grant the visa because Miss Yip did not satisfy cl.485.231 of Schedule 2 to the Regulations since the degree certificate provided by her in respect of her Bachelor of Pharmacy from the University of Sydney (USyd) did not state the date of completion of her degree. Accordingly, the delegate was not satisfied with the evidence provided that Ms Yip’s degree was completed at some time in the 6 months before the application was lodged. A copy of the delegate’s decision was provided to the Tribunal.
The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers pursuant to s.360(2)(a) of the Act having regard to material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Ms Yip is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations. These include that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3) of Schedule 2 of the Regulations.
The issue in the present case is whether Miss Yip ‘completed’ her Bachelor of Pharmacy in the 6 months immediately before making her Subclass 485 visa application on 4 March 2018 as required by cl.485.231(3)…

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 2294
Decision Date: 31 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Post-Study Work stream, made by Ms Yip. The dispute centred on whether Ms Yip had satisfied the Australian study requirement within the six months immediately preceding her visa application. The Administrative Appeals Tribunal (AAT) considered the matter on the papers, without holding a hearing.

The primary legal issue before the Tribunal was whether Ms Yip had "completed" her Bachelor of Pharmacy within the six months prior to her visa application on 4 March 2018, as required by clause 485.231(3) of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to determine if her study met the definition of the "Australian study requirement" as set out in regulation 1.15F of the Regulations.

The Tribunal reasoned that the definition of "completed" in regulation 1.15F(2) means having met the academic requirements for the award of the qualification, and this does not necessitate the formal conferral of the degree. While Ms Yip's certificate did not explicitly state a completion date, the Tribunal had regard to her academic transcripts and a letter confirming her completion date. Based on this material, the Tribunal found that Ms Yip had satisfied the Australian study requirement within the relevant timeframe. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that Ms Yip met the criterion in clause 485.231(3).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers pursuant to s.360(2)(a) of the Act having regard to material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Ms Yip is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which include cl.485.231 of Schedule 2 to the Regulations. These include that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3) of Schedule 2 of the Regulations. The issue in the present case is whether Miss Yip ‘completed’ her Bachelor of Pharmacy in the 6 months immediately before making her Subclass 485 visa application on 4 March 2018 as required by cl.485.231(3) of Schedule 2 to the Regulations. 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: (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 least 2 academic years study; and,(d) for which all instruction was conducted in English; and,(e) 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 r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000. Regulation 1.15F(2) defines the ‘completion’ of a degree, diploma or trade qualification as follows:(2) In this regulation: completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award. Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

Decision

Reasons for decision

Having regard to evidence referred to above, the Tribunal finds that Miss Yip satisfies the Australian study requirement in the 6 months immediately before the date she lodged her Subclass 485 the visa application. Therefore, she meets cl.485.231(3) of Schedule 2 of the Regulations. In the circumstances, 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 Regulations.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

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