Nguyen (Migration)

[2024] AATA 2193

Nguyen (Migration) [2024] AATA 2193 (13 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vu Anh Tuan Nguyen
Mrs Thi Nhat Oanh Dinh
Miss Tyanna Vu Nguyen

CASE NUMBER:  2208340

HOME AFFAIRS REFERENCE(S):          BCC2020/2203871

MEMBER:Warren Stooke AM

DATE:13 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 13 June 2024 at 10:28am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – undertake an English language test in the 36 months prior to application – unfair or unreasonable results – Covid restrictions – unique or exceptional circumstances – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 485.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 August 2020. 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 (Cth) (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.

3. The delegate refused the visas on 24 May 2022 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants appeared before the Tribunal on 23 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant stated at hearing that he had received and read the decision of the delegate, which was provided to the Tribunal with the application for review.

6. The applicant stated that he understood the visa application was refused by the Department because the applicant did not submit English language results to the government.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl 485.212 which requires that the application was accompanied by evidence that:

   ·the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl 485.212 (a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212 (b)).

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2).

3. As the applicant does not satisfy: cl 485.232 or cl 485.233, cl 485.212(1) does apply.

4. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 - of the Register of Instruments: Skilled Visas. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl 485.212(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a).

5. The applicant was granted a Bridging Visa A on 30 August 2020 with condition 8501 to maintain health insurance.

6. The applicant provided evidence of health insurance with BUPA that commenced on 30 August 2020.

7. The applicant provided evidence of graduating with a Bachelor of Information Technology from Victoria University that was awarded on 6 August 2020.

8. The applicant provided evidence of a skills assessment by the Australian Computer Society dated 23 September 2020 for the nominated occupation of Developer Programmer – ANZSCO Code: 261312.

9. The applicant provided evidence of an Overseas Police Clearance from Vietnam dated 1 September 2020 with ‘no record’.

10. The applicant provided evidence of an AFP National Police Certificate dated 7 September 2020 that identified ‘no disclosable court outcomes’.

11. The applicant booked a PTE English language test on 30 August 2020 that was to be provided on 28 September 2020 that was cancelled during the Covid pandemic lockdown.

12. The applicant provided evidence of undertaking a PTE English language test on 2 February 2021 with an overall test score of 44.

13. The applicant provided evidence of undertaking a PTE English language test on 14 May 2024 with an overall test score of 51.

14. The Tribunal explained to the applicant the issue in this case and asked the applicant if he understood and the applicant responded: “Yes, I understand that and it was because of Covid”.

15. On 30 August 2020 the applicant lodged an online Temporary Graduate (Graduate Work Stream) (Class VC) (Subclass 485) visa application. The applicant declared ‘No’ to the following declaration: Has the applicant undertaken an English test in the last 36 months?

16. The applicant confirmed at hearing that he did not undertake an English language test in the 36 months prior to application on 30 August 2020.

17. The Tribunal put to the applicant – ‘no test prior to application’ and the applicant responded: “That is correct”.

18. On 30 August 2020 the applicant made the following submission to the Department Case officer:

    “Ref: Compassionate Consideration for Visa Subclass 485 Application
    Background:

    1. The year 2020 has been a big year for me and our family. I have just completed my Bachelor of Information Technology (Web and Mobile Application Development) on 6 August 2020.

    2. Our baby girl Tyanna was born on 29 March 2020. Being the first time parents, we are struggling to cope with taking care of our baby by ourselves with sleepless nights and worrying. Our parents could not travel from Vietnam to assist us.

    3. Due to COVID-19 pandemic lockdown and the lack of prospect in employment; I have been developing stress and depression. My wife and I are afraid to go out as we are worry of the possibility of passing COVID-19 to our five months baby.

    4. We are sincerely to compassionately consider our following special circumstances

    Waiver of English Requirement at Time of Subclass 485 Application

    5. As per requirement subparagraph 485.212(a)(i) of the Regulations, the application needs to be accompanied with either a IELTS or PTE Academic test results.

    6. I have been trying to reserve an English test at the time of applying for 485 visa without any success.

    7. Due to the current stage 4 lockdown of COVID-19 in Victoria, all IELTS and PTE centres are not taking any booking in August and most of September. Please refer to the following screenshots

    a) IELTS
    b) PTE

    8. I have booked a PTE Academic test on 28 September 2020 (please refer to the attached PTE test confirmation). I will update the test result once it becomes available.

    Expired Passport and Child’s Passport
    9. Due to stress, busy with trying to complete my last semester at university and constant caring for our five month old baby, I have overlooked of my current passport being expired on 17 June 2020. I have contacted the Vietnamese Embassy in Canberra to renew my passport as well as applying a passport for my daughter.

    Unaccompanied Applicant

    10. Without having a passport, I am not able to include my daughter with my application. I have listed her as “Unaccompanied Applicant”

    11. I will include my daughter as soon as her passport becomes available.

    Skill Assessment
    12. I completed my degree on 6 August 2020 which is approximately 3 weeks ago. Please find attached the receipt from Australian Computer Society. I will forward it to you as soon as i receive it.

    We really do appreciate your kind consideration.”

19. On 15 May 2024, the applicant addressed the following submission to the Presiding Member:

    “I am writing this letter regarding the invitation to attend a hearing on 23 May 2024, which was sent on 26 April 2024. I would like to explain the circumstances related to the issues arising in my case.
    At the beginning of 2020, the Covid-19 pandemic started in Melbourne while I was finishing my last semester of the Bachelor of Information Technology in Web and Mobile Application Development at Victoria University. During the same time, my wife, who has been with me in Australia since November 2016, gave birth to our first baby on 29 March 2020. (Please find my daughter’s Birth Certificate attached for further information). The Covid-19 situation in Melbourne and Vietnam became more complicated. Protecting my newborn baby's life was my priority. Additionally, I believed that with my Bachelor's degree, I could contribute to the Australian society through the networks and communities I was part of. (Please find my BA Graduation Certificate attached for further information). Therefore, after completing my degree in August 2020, I urgently applied for the Temporary Graduate (Graduate Work) (subclass 485) visa, despite missing requirements such as Skilled Assessment, Immigration Health Examinations, Australian Federal Police (AFP) National Police Certificates, and English language requirements. I submitted all the required documentation to the Department of Home Affairs afterward, except for English language certificates.
    In regard to the English language requirements, since I applied the visa, I booked the earliest PTE test that was available at RMIT English Worldwide for 28 September 2020 for my visa application. I was confident about the test, as I regularly practiced English with friends, tutors, and during my studies. However, due to strict COVID-19 measures by the Victoria Government, all examination centers were closed, and my test was canceled (Please see the attached copy of the cancelation email from PTE for further information).
    During the lockdown, I only spoke Vietnamese at home, which caused a significant decline in my English skills. After the exam center reopened in February 2021, I attempted a PTE test and only scored 44 overall, which was slightly below the required 50 overall. (Please see my attached 44-PTE certificate for further information). Additionally, back over two years earlier, in late 2019, while I put all my effort into finishing my last year at the university, I also took care of my pregnant wife. Unfortunately, I have been suffering from anxiety, depression, and chronic difficulty sleeping since 2019. (Please find my GP letter attached for further information). My illness had become more serious during the pandemic. I have been worrying about my family’s future and feeling disappointed that I haven't been able to work after graduating.
    During the pandemic, my wife's mother passed away suddenly from stomach cancer on January 15, 2021 (Please find her Extract of Death Certificate and my wife’s Extract of Birth Certificate - attached for further information). This had a huge impact on my family, especially on my wife who was already dealing with postpartum depression. Among the children, my wife was closest to her mother; she was the most important person in my wife's life. It was a great regret that she could not come back to Vietnam for her mom's funeral due to the pandemic and our visa issues.
    Furthermore, from June 2020 to August 2021, all three members of my family tested positive for COVID-19 twice and underwent isolation at home as advised by the Department of Health. Unfortunately, my condition worsened during isolation, especially since I had to take care of my family without any help from relatives or friends. Due to my health condition, I felt overwhelmed when I thought about my visa and English test, so I postponed taking another test.
    Realizing the severity of my health issues, I sought help from my General Practitioner, who devised a long-term treatment plan for me. Despite my own health challenges, I also supported my wife and baby by engaging in physical exercise, seeking assistance from relevant organizations, and looking for job opportunities.

    During my recovery, I received a letter rejecting our application from the Department of Home Affairs on 24th May 2022. However, I remain determined and have decided to appeal the decision to the Administrative Appeals Tribunal (AAT) for a thorough review.

    Since June 2022, I have been employed full-time at Class Plastics (Aust) Pty Ltd, which is a national manufacturer and distributor of industrial plastic and container packaging from 1 to 1000 litre capacity. After recovering from the pandemic and my illness, I regained my energy and enthusiasm. I have been actively involved in various volunteering events. These include IT tutoring, support activities with Vietnamese Families Special Needs, and the Marriage and Family Enrichment Program. My wife and I have presented at training workshops for married couples, focusing on communication, empathy, and parenting. I have also participated in training and recreational activities for families with special needs, as well as entertained at various group gatherings with magic tricks, drama, and dancing. The organizers have provided positive feedback on my work and my conduct. (Please refer to the attached letters from Rev Hoa Trung Dinh and VFSN for more information). One of my recent achievements is being promoted to supervisor at Class Plastics in recognition of my contributions and effective verbal and written communication with colleagues from February 2024 . (Please find the attached letter from my Production Manager for further information).

    After successfully overcoming the mental issue, I gained confidence and was prepared to take another English test. However, I was unsure when my case would be reviewed. It's important to note that a PTE certificate is only valid for three years. I waited until AAT sent a letter confirming that my case would be reviewed on 23 May 2024. On 14 May 2024, I took a test and achieved the required 51 overall score. (Please see my attached 51-PTE certificate for further information).

    I never intended to delay my career or the visa application process, but I had not anticipated the effects of COVID-19 and the way it affected me and my mental health. I am grateful that I am now in a better state of mind and have recovered my energy and skills in order to serve my family and the community. With this in mind, I would like to express my gratitude and I hope to receive your approval for me and my family to continue residing in and contributing to Australian society.”

20. The applicant provided the Tribunal with a medical certificate from Dr Phuong Hun Pham dated 26 April 2024 that stated that the applicant had been suffering from anxiety and depression from 2019 to 2023.

21. The applicant provided evidence of the birth of his child, Tyanna Vu Nguyen, dated 29 March 2020.

22. The applicant provided evidence of the death certificate of his mother-in-law from stomach cancer, that was dated 15 January 2021.

23. The Department file contains evidence that the Department corresponded with the applicant pursuant to s56 with a request for information on 22 September 2020; request for information on 4 November 2020; request for information on 9 February 2020; evidence of English language proficiency on 2 November 2021; evidence of English language proficiency and AFP National Police clearance on 2 December 2021.

24. The applicant provided a detailed reference dated 9 May 2024 from Rev Dr Hoa Trung Dinh, MBBS, Phd, who is a Lecturer at the Catholic Theological College, University of Divinity, East Melbourne that stated he ‘witnessed firsthand the resilience and strength of Tuan and his family have demonstrated in the face of adversity, particularly during the challenging period of the Covid-19 pandemic’. The correspondence also stated that the circumstances of the applicant’s ‘failure, including the stress of the pandemic, caring for an infant, and dealing with personal losses, significantly impacted his ability to perform at his best’.

25. The applicant also provided a written reference from the applicant’s employer, Sharon Ghinga, Production Manager, Class Plastics (Aust) Pty Ltd, where the applicant is highly regarded and has recently been promoted to the position of Supervisor.

26. As cl. 485.212(a)(ii) requires a minimum English language test score of 50 under the PTE English language test, which is required within a 3 year period prior to application on 30 August 2020, the Tribunal is satisfied that the applicant has not met the English language test requirements for the visa.

27. Whilst the Tribunal acknowledges that the applicant has provided evidence of a PTE English language test undertaken on 14 May 2024, with an overall score of 51, the test result does not meet the prior to application requirement.

28. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

29. On the basis of the above, the applicant does not meet the requirements of cl 485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

Ministerial Reference

1. At the conclusion of the hearing the applicant confirmed to the Tribunal that it was the intention to seek a Ministerial Reference, pursuant to s.351 of the Act.

2. The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister considers that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening:  >

   The guidelines that relate to unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

3. The Tribunal considers, in this case, that the application of the relevant legislation does lead to an unfair or unreasonable result for the applicant, given the claim that the applicant was initially unable to comply with the visa obligations concerning English proficiency due to Covid restrictions that precluded the applicant from undertaking an English language proficiency test during significant lockdown periods in Victoria; together with the difficulties associated with the birth of the applicant’s child from 29 March 2020; the medical evidence that the applicant was suffering from anxiety and depression from 2019 to 2023; and the death of the applicant’s mother-in-law on 15 January 2021 following a period of diagnosed stomach cancer.

4. The applicant provided evidence of support from the Rev Dr Hoa Trung Dinh, MBBS, Phd, who is a Lecturer at the Catholic Theological College, University of Divinity, East Melbourne concerning the applicant’s personal circumstances that impacted the applicant’s ability to perform at his best; together with evidence from the applicant’s employer, Glass Plastics (Aust) Pty Ltd, where the applicant has recently been promoted to the position of Supervisor; and medical evidence that the applicant had been suffering from anxiety and depression during a period of significant adverse circumstances from 2019 to 2023. Accordingly, the Tribunal has considered reference of the matter to the Minister for consideration.

1. Whilst the Tribunal is not satisfied that the applicant’s application was accompanied by evidence that meets cl. 485.212(a)(ii), the Tribunal finds that a Ministerial Referencefrom the Tribunal pursuant to s.351, would be appropriate in this case, for the following reasons:

   a.The applicant has successfully completed a Bachelor of Information Technology at Victoria University in a vocation that has been designated on the Short Skills list of occupations – ANZSCO: 261312, which has been assessed by the Australia Computer Society, as suitable on 23 September 2020;

   b.The applicant is gainfully employed with Glass Plastics (Aust) Pty Ltd and recently promoted to the position of Supervisor, where his team work and personal skills have been praised by the company’s Production Manager;

   c.The applicant has provided evidence of completion of a PTE English language proficiency test result on 14 May 2024, post application, with an overall score of 51. This score meets the requirements for the class of visa;

   d.The applicant has produced medical evidence that impacted on his ability to perform during the period 2019 to 2023;

   e.The applicant was subject to adverse circumstances at the time of application that included the preclusion to undertake an English language proficiency test due to Covid restrictions, the birth of an infant child and the personal loss of his mother-in-law from stomach cancer.

2. Overall, the Tribunal is satisfied in this case with the existence of ‘unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship’.

3. Further, the Tribunal accepts that the affirming of the delegate’s decision in this case does create ‘circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome’ due to the requirement to meet the English language requirements at the time of application, which the applicant has demonstrated arose from the impact of personal events, including Covid, the birth of an infant, the loss of a family member from stomach cancer and an extended period of anxiety and depression from 2019-2023, which is supported by medical evidence.

4. Finally, the Tribunal, whilst acknowledging that the discretion solely rests with the Minister in these matters, recommends that the unique or exceptional circumstances, including compassionate circumstances regarding the applicant and the community contribution and service, that if not recognised, would result in serious, ongoing and irreversible harm and hardship. In the Tribunal’s view, the harm that would result from the applicant not being granted the 485 Visa is significant for the reasons outlined herein. As such, the Tribunal recommends that the Minister’s discretion should be exercised in this exceptional and worthy case.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Warren Stooke AM
Member