Nguyen (Migration)

[2021] AATA 3775

Nguyen (Migration) [2021] AATA 3775 (16 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tran Minh Bao Nguyen

CASE NUMBER:  1911029

HOME AFFAIRS REFERENCE(S):          BCC2019/614526

MEMBER:Mary Sheargold

DATE:16 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 16 September 2021 at 11:59am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – courses completed within 6 months before visa application – visa application lodged before university notification of completion – professional registration – skills assessment – referral for Ministerial intervention – shortage of mental health and psychological services – impact of COVID19 pandemic – decision under review affirmed          

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65, 351
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15

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 on 12 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 February 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 (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

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because she could not demonstrate that she the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made

4. The applicant appeared before the Tribunal by telephone on 27 August 2021 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

   Does the applicant meet the Australian study requirement?

7. 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.

8. Under reg 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.

9. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 1.03, 1.15F and 2.26AC(6), and cl 485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (reg 1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (Cth): LIN 19/085.

10. The applicant applied for the visa on 24 February 2019.  The evidence before the Tribunal shows that she completed a Master of Clinical Psychology degree at RMIT University on 28 February 2019, and a Bachelor of Applied Science (Psychology) (Honours) in 2016.  The issue before the Tribunal is whether the applicant completed a qualification in the 6 months immediately before the date the application was made.

11. At the hearing, Ms Nguyen gave evidence that she had been eager to ensure she made a timely application for her visa and so she made all the preparations after completing her final assessments for her degree but prior to being notified by RMIT University that she had completed her course.  The evidence before the Tribunal, that Ms Nguyen accepts as true, is that she officially completed her course on 28 February 2019.  The Tribunal explained to Ms Nguyen that unfortunately the requirement in cl.485.231(3) was prescriptive, and there was no discretion to accept an application made in anticipation of a formal completion of a qualification.  Ms Nguyen conceded she had not completed any other qualifications in the 6 months immediately before 24 February 2019.

12. Based on the evidence before it, the Tribunal finds that Ms Nguyen did not complete a qualification in satisfaction of the Australian study requirement in the 6 months immediately before the day she made this visa application.  Therefore, she cannot meet the requirement in cl.485.231(3) and in turn, cl.485.231 is not met.

13. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.

    Request for Ministerial intervention

14. At the hearing, the Tribunal noted Ms Nguyen’s written submissions prior to the hearing outlining her qualifications and work as a clinical psychologist in Melbourne. The Tribunal noted that it was open to Ms Nguyen to request the Tribunal consider referring her application to the Minister as set out in s.351 of the Migration Act. Ms Nguyen indicated at the hearing that she did wish to have her application considered for referral for Ministerial intervention.

15. The Tribunal asked Ms Nguyen if she could provide documentary evidence to support the argument that it would be of exceptional benefit to the Australian community should she be granted a visa to work in Australia.  Ms Nguyen was offered until 10 September 2021 to provide the relevant documents in support of her application as outlined in the Minister’s guidelines.

16. On 9 September 2021, Ms Nguyen requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Ms Nguyen provided the following documents to the Tribunal in support of her request:

    ·written submissions dated 9 September 2021;

    ·a letter of recommendation from Matthew Vella, the founder and CEO of The Talk Shop, Ms Nguyen’s current employer, dated 31 August 2021;

    ·a copy of Ms Nguyen’s invitation to apply for a Subclass 189 visa dated 14 July 2020;

    ·a copy of her IELTS test report form dated 21 July 2019;

    ·a written reference from Antoni Centofanti, Clinical Psychologist, dated 2 September 2021;

    ·a copy of Ms Nguyen’s certification as a registered psychologist with the Psychology Board and AHPRA valid until 30 November 2021;

    ·a copy of Ms Nguyen’s certificate of membership of the Australian Psychological Society from 19 June 2019, for the period from 1 June 2021 to 31 May 2022;

    ·a copy of a skills assessment from the Australian Psychological Society date 14 August 2019;

    ·a letter of support from Ms Nguyen’s partner’s sponsoring employer to add her as a subsequent entrant to her partner’s subclass 482 visa; and

    ·a copy of a NAATI certification dated 7 February 2020 stating Ms Nguyen has successfully passed a Credentialied Community Language Test in Vietnamese.

17. The Tribunal notes that the Minister’s guidelines set out unique or exceptional circumstances including an exceptional benefit to the community that would result from an applicant being permitted to remain in Australia.  The Tribunal notes Ms Nguyen has provided examples of supporting documents as identified in the Minister’s guidelines to assist in determining whether there may be exceptional benefit to the community should she be permitted to remain in Australia.

18. Ms Nguyen works as a clinical psychologist in Melbourne.  Her letter of recommendation from Matthew Vella, CEO of her employer, The Talk Shop, sets out the considerable shortage of mental health and psychological services in Victoria in the context of the current Covid-19 pandemic, and indicates that Ms Nguyen has a waiting list of 3 months to obtain her services.  Mr Vella identifies the risk to her existing patients if she is not permitted to remain in Australia.  The Tribunal notes the body of documentation that Ms Nguyen has provided in support of her application and notes that, as a result of the Covid-19 pandemic and the protracted periods in which Melbourne in particular has been subjected to significant restrictions over an extended period, there is a publicly recognised and accepted need for further mental health services.  The Tribunal considers there would be detriment to the community should Ms Nguyen not be permitted to continue her work, and based on all the evidence provided, is satisfied that it is appropriate to refer the matter to the Department.

19. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Mary Sheargold
    Member