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…

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: [2024] AATA 1537
Decision Date: 31 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant's eligibility for this visa was contested, specifically concerning whether they met the requirements for the Australian study requirement and the close relationship between their qualification and nominated occupation.

The primary legal issues before the Tribunal were whether the applicant satisfied the ‘Australian study requirement’ within the prescribed timeframe, as stipulated by clause 485.221 of Schedule 2 to the Regulations, and whether their degree qualification was ‘closely related’ to their nominated occupation of Electrical Engineer, as required by clause 485.222 of Schedule 2. The definition of ‘completed’ in relation to a qualification, meaning the academic requirements for its award have been met, was also a relevant consideration.

The Tribunal found that the applicant had met the criteria for both clause 485.221 and clause 485.222. This conclusion was based on evidence including statements from the applicant, university records confirming attendance, completion, and graduation, and a response from the University of New South Wales. The Tribunal determined that the applicant had satisfied the Australian study requirement and that their qualification was closely related to their nominated occupation.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant meets the specified criteria under clauses 485.221 and 485.222 of Schedule 2 to the Regulations.

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 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.

Decision

Reasons for decision

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 McMurranMember

Ratio Decidendi

Legal Principle Established

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