Nguyen (Migration) - [2024] AATA 1537

Nguyen (Migration) [2024] AATA 1537 (31 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tuan Minh Nguyen
REPRESENTATIVE:  Ms Xi Fu (MARN: 1805614)
CASE NUMBER:  2208726
HOME AFFAIRS REFERENCE(S):          BCC2021/1168669
MEMBER:Alan McMurran
DATE:31 May 2024
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 criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations
·cl 485.222 of Schedule 2 to the Regulations

Statement made on 31 May 2024 at 11:05am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – course completion date – Electrical Engineer – qualification ‘closely related’ to nominated occupation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Ali v MICMSMA [2021] FCA 1311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 16 June 2022 for review of a decision made by a delegate of the Minister for Home Affairs on 31 May 2022 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, Mr Tuan Minh Nguyen, a 27 year-old citizen of the Socialist Republic of Vietnam, applied for the visa on 31 May 2021. 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.
There are no additional family members combined with this application. All criteria must be met for the application to progress.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.221 of Schedule 2 to the Regulations. The delegate found that the applicant had not completed the course of study in the last 6 months ending immediately before the day the application was made.
The applicant was represented in relation to the review by a registered migration agent.
Tribunal process
On 3 April 2024, the Tribunal invited the applicant to attend in person for a hearing on 16 May 2024 for 1 hour at the Tribunal’s offices in Sydney.
On 3 April 2024, the Tribunal wrote to the applicant under s 359A of the Act, and invited the applicant to provide information. The requested information sought particulars including the applicant’s course enrolment, commencement and finish dates, Certificate of Enrolment (CoE) and his course completion letter.
The Tribunal letter also invited the applicant to make any submissions he might wish to include for consideration. He was asked to respond by 18 April 2024.
On 9 April 2024, the Tribunal recorded the applicant’s hearing response. The response was signed by the applicant personally on 3 April 2024, and noted the applicant would rely upon documents for the hearing identified as his CoE and “letter from school”. He would attend in person but without the representative.
On 9 April 2024, the applicant provided a written authority for the AAT to request information from his course provider, the University of New South Wales (UNSW) in Sydney. The applicant also uploaded for the Tribunal a copy of the Department’s decision made 31 May 2022.
On 11 April 2024, a Tribunal officer sent an email to the University of Sydney requesting the applicant’s information. The letter sent was in error to the wrong university. The University of Sydney advised the Tribunal officer of the misdirected communication on 16 April 2024.
The Tribunal officer then wrote to UNSW who responded by email on 18 April 2024. The emailed response included the following information about the applicant’ enrolment:
“Tuan Minh NGUYEN graduated with a Bachelor of Engineering (Honours) in Electrical Engineering on 22 July 2021.
Tuan Minh NGUYEN was enrolled in this program from 29 February (Semester 1) 2016 until 30 May (Term 1) 2021.
The date of completion of the Bachelor of Engineering (Honours) was 9 July 2021 and as noted above the date of graduation was 22 July 2021.
The normal program duration for the Bachelor of Engineering (Honours) (program code 3707) is 4 years full time.
Please note that the dates of attendance that we provide are relative to the start and end dates of each academic semester or term in which the student/alumni began and finished their degree program. Dates of completion may be past the date of the last semester or term attended due to factors such as requisite Industrial Training programs being completed after such date or when the student has meet all requirements and is confirmed by their Faculty for graduation.”
On 23 April 2024, the Tribunal, wrote to the applicant attaching a copy of the UNSW response and noting that the completion date recorded by the university was 9 July 2021. The applicant was invited to comment. The Tribunal did not receive a reply.
On 30 April 2024, the Tribunal sent a further letter under s 359A of the Act. The letter informed the applicant that as the university records had confirmed he completed his degree on 9 July 2021, this meant he had lodged his application before completion, and which meant that if the Tribunal relied upon this information, his application could not succeed. He was invited to comment on the information by 14 May 2024. He was again warned that if he did not respond to the information, or request an extension with reasons, he would lose any entitlement to appear to give evidence and present arguments.
The applicant did not respond by the due date, 14 May 2024. As a result, the applicant lost the right under the Act to appear, and the hearing was cancelled. The applicant was informed of the cancellation by email on 15 May 2024.
On 15 May 2024, at 11:14AM, following receipt of the cancellation email, the applicant rang the Tribunal and spoke to the Tribunal officer. The case note records that the applicant confirmed his lawyer had passed on the email inviting comment on the UNSW information about the completion date, but had informed him that there was no reason to provide comment, and that he had no further information. The applicant then emailed the Tribunal stating:
“My lawyer did send me an email saying that the AAT invites me to comment on my case. in the case we don’t have any further evidence to provide, we can still wait until the decision.
I didn't provide any comment because I thought that I don’t have any further evidence. It was a misunderstanding from my side.
If the member still requires my comment, please see below:
I received the test result in 22nd May 2021. But I hadn't received my completion letter. I submitted the final report for my internship in early May 2021. I knew the uni would take some time to send me the completion letter but I didn't know they would take that long to process. As my student visa expired in 31st May 2021 and Australian border was closed with no flight out due to Covid, I decided to apply for 485 visa without professional help because I thought that I had received the grade for all the courses and sent all required documents, I am eligible for the 485 visa."
On 15 May 2024, at 3:45PM, the applicant sent a second email asking the Tribunal for “reinstatement of my hearing”. In that request, the applicant explained that he had been unable to respond in time and asserted that he had completed his degree requirement before lodging his application.
On 17 May 2024, the Tribunal in considering the reinstatement request sent a letter in reply to the applicant. The Tribunal letter invited him to submit evidence about :
- When he submitted final work for assessment and
- When (actual date) and how (email/publication/telephone) he was advised of the outcome and final results in May 2021, and
- From whom he received the results.
The Tribunal gave the applicant a further period to provide the information. The applicant was requested to reply by 24 May 2024.
On 24 May 2024, the applicant responded and provided evidence of receipt of his examination results.
The applicant was represented in relation to the review.
For the reasons below, the Tribunal finds it is able to resolve the application favourably for the applicant and without a need for reinstatement of the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221(a)).
Alternatively, the applicant must have satisfied the ‘Australian study requirement’ in the 12 months immediately before the day the visa application was made, if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.221(b)).
Secondly, unless limited circumstances apply, each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222(1)).The applicant has nominated his skilled occupation as Electrical Engineer (ANZSCO 233311).
Issue for consideration
The issue in the present case is whether the applicant meets those requirements in paragraph 485.22 of Schedule 2 of the Regulations.
The applicant has submitted for consideration:
·Statement made and emailed 15 May 2024;
·Statement mailed and emailed 24 May 2024;
·Extract from the University of NSW (“UNSW”) records showing ‘Key Dates’ for exam period and ‘Release of Results’ for 2021.
The Tribunal also has access to the applicant’s PRISM record for his course attendance, the Department file, the delegate’s decision, UNSW emailed response to the AAT of 18 April 2024, confirming his attendance, completion, and graduation.
Reference is made below to the relevant submissions and information available.
Does the applicant meet the Australian study requirement?
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; and
·that were completed in a total of at least 16 calendar months; and
·that were completed as a result of a total of at least 2 academic years study; and
·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.
‘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 or courses registered under the Education Services for Overseas Students Act 2000 (Cth) LIN 19/085.
The Tribunal is satisfied and finds from the available information from the Department file and the applicant’s submissions that the applicant was enrolled in a registered degree course at UNSW, completed in a period of at least 16 calendar months over a total of at least 2 academic years study and for which all instruction was conducted in English.
At all relevant times, the information shows that the applicant was the holder of a visa authorising study.
The issue whether the applicant satisfied the Australian study requirement in the 6 months immediately before the day the application was made is considered as follows.
When did the applicant complete the Australian study requirement?
The period calculating 6 months before the day the application was made for this case commenced 30 November 2020 and ended 30 May 2021, being the last day before lodgement of the application.
The delegate found the applicant completed his qualification on 9 July 2021 because this was the date on the applicant’s academic transcript provided by UNSW.
In the application, the applicant states the course was completed on 31 May 2021. This submission as to the course completion date is confirmed by the PRISM record.
UNSW has provided the applicant a copy of his graduation certificate. The certificate is dated 22 July 2021.
The applicant states in his written submission made 24 May 2024 that he completed the requirements for the degree when he received his emailed results from UNSW on 20 May 2021. He states this date has been confirmed from the UNSW website and he has provided a copy of the confirmation of the date. He also states that the date of 20 May 2021 was published on the UNSW website for information for students. There was nothing further required from that event for completion of any academic requirements.
Analysis
There are 3 possible dates referenced for the ‘completion date’ in the available information. The first date of 22 July 2021, being the graduation certificate date, can be disregarded as it is not evidence as to when the applicant actually completed his last examinations and was assessed for having ‘completed’ all academic requirements for the award.
The second date is from UNSW (email of 18 April 2024) which states the applicant was enrolled in the period for the course until 30 May 2021 and that the “date of completion of the Honours program” occurred on 9 July 2021.
Unfortunately, the UNSW statement does not make reference to the actual date of assessment and student notification and publication of results. It does however qualify its recorded dates by stating:
“Please note that the dates of attendance that we provide are relative to the start and end dates of each academic semester or term in which the student/alumni began and finished their degree program. Dates of completion may be past the date of the last semester or term attended due to factors such as requisite Industrial Training programs being completed after such date or when the student has meet all requirements and is confirmed by their Faculty for graduation.” [ Tribunal’s emphasis]
The third possibility is the date submitted by the applicant as 20 May 2021. This is because this was the date when UNSW published the results and he was notified that he had passed his exams.
Without more, the delegate accepted the date of 9 July 2021 as the relevant completion date. The Tribunal respectfully disagrees for the following reasons.
The courts have considered the issue and the Tribunal accepts as the decision maker the need to follow court guidance and authority.
The opinion of McKerracher J in Ali v MICMSMA [2021] FCA 1311 (27 October 2021) ( “Ali’s case”) is authority for the proposition that in order for the applicant to meet the requirement, he needed to demonstrate that he had completed the course of study, in this case, prior to midnight on 30 May 2020.
The Tribunal accepts that the date on which the institution finalises the results for the relevant course is the date when the academic requirements have been met. That is when the last academic hurdle has been overcome and all subjects successfully passed. The applicant can do nothing further to ‘complete’ the course requirements. [1]
[1] See Sapkota v MIAC [2012] FCA 981 at [26], which was followed in Ali’s case.
The UNSW statement made 18 April 2024 is qualified. It does not assert that the ‘completion’ date of 9 July 2022 is the date of completion of all academic requirements. It states only that the course has been ‘completed’ and the academic requirements met as at that date. It also notes the last Semester for the applicant, who was enrolled full-time, ended on 30 May 2021, which in terms of its ordinary meaning contradicts any assertion that after that date there remained further assessment or course requirements. No post-course completion date requirements are evidenced in this case.
Notification of successful outcomes for that last Semester and the related two subjects occurred according to the applicant after his exams, and on 20 May 2021 when his results were published and he received an email to that effect. He has provided evidence to support the claim, and which comes from the UNSW record on its website and which the Tribunal accepts.
It is a factual matter for the Tribunal to determine on the available information, and having regard relevantly to the documents submitted as to when the applicant completed all the academic requirements. This approach aligns with the definition in reg 1.15F(2).
The Federal Court has held that it would not be a correct approach for the decision-maker to simply rely upon and accept the date (or in this instance, the dates) supplied by the university. Such an approach means the Tribunal “would be to, in effect, act under dictation. This is not permissible”.[2]
[2] see: Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311 at [41] per McKerracher J.(“Ali”)
The Ali decision notes that although the date of publication of results indicates a satisfactory assessment, it does not necessarily determine the date when all student academic requirements were ‘completed’. The date must be dependent upon the particular established facts relevant to completion, and which facts may differ from each case and according to different policies within institutions as to assessment and notification, and over which the student has no control.
Findings
The Tribunal finds in this case that there is no better information as to when the completion date occurred than the date of the UNSW published student results. The Tribunal is satisfied that this approach accords with relevant court authority as referenced above.
The Tribunal finds for this review that completion occurred when the final unit of study or course work has been examined and assessed as satisfactory by the relevant academic supervisor. This is evidenced when the applicant’s successful outcome for his results was emailed to him and published by UNSW on 20 May 2021.
The applicant was required to satisfy the temporal requirement in the 6 months’ period commencing 30 November 2020 and which ended 30 May 2021. The Tribunal finds on the available information that the correct date for completion of the academic requirements in this case was 20 May 2021.
The application was lodged on 31 May 2021.
The Tribunal is satisfied therefore that as at the date of lodgement, the applicant had met the Australian study requirement in the 6 months immediately before the date of the visa application.
Therefore, the applicant meets cl 485.221.
Is the qualification ‘closely related’ to the nominated occupation?
In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation, unless the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 31 May 2021.
Accordingly, the applicant is required to satisfy the study requirement in cl 485.222(1).

An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (regs 1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument LIN 19/051.
In this case, the applicant nominated the occupation of Electrical Engineer 233311 which is a skilled occupation specified in the relevant instrument.
The Tribunal finds that the applicant’s course of study for a Degree (with Honours), specialising in Electrical Engineering, is ‘closely’ related to the applicant’s chosen occupation.
As the qualification used to satisfy the Australian study requirement in this case is closely related to the nominated skilled occupation, the applicant meets cl 485.222.
Conclusion
On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and 485.222. 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 criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations
·cl 485.222 of Schedule 2 to the Regulations.
Alan McMurran
Member