Nguyen (Migration)

[2019] AATA 3697

Nguyen (Migration) [2019] AATA 3697 (27 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Canh Vuong Nguyen
Mrs Thi Trang Vi

CASE NUMBER:  1801628

HOME AFFAIRS REFERENCE(S):           BCC2017/4014596

MEMBER:Karen McNamara

DATE:27 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.231 of Schedule 2 to the Regulations

Statement made on 27 June 2019 at 10:03am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – study requirement – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.231, r 1.15F(1)

CASES

Sapkota v MIAC [2012] FCA 981

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 9 January 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 October 2017. 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, 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 first named applicant (Mr Canh Voung Nguyen) did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the Australian study requirement had been completed in the period of 6 months ending immediately before the day the visa application was made:cl.485.231(3).

4. On the 1 March 2019, the Tribunal invited the applicants to attend a hearing on 9 April 2019.

5. On the 26 March 2019 the Tribunal received a response to attend the hearing scheduled for the 9 April 2019 and a FOI request from the applicant’s representative.

6. On 1 April 2018, the Tribunal received a written submission from the applicants representative dated 1 April 2019 which included the following documents

   ·Submission from  Representative dated 1 April 2019

   ·Review of grade application

   ·Email from  Western Sydney University (Yvonne Daly) dated 18 October 2017

   ·Email from  Western Sydney University (Jenelle Wilson, Assessment Officer) dated           30 October 2017

   ·Academic Transcript dated 30 October 2017

   ·Academic Transcript dated 26 March 2019

7. On the 8 April 2019 the Tribunal received a request from the applicant’s representative (forwarded the previous evening Sunday 7 April 2019 at 5pm), advising “ I have instructions from my client, having regard to the crystallisation of the legal issues in this matter, to waiver the right to a hearing and to request that the Tribunal proceed to determine the matter on the  papers.”

8. The Tribunal resolved this matter on the papers.

9. The applicants were represented in relation to the review by their registered migration agent.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 meets those requirements.

    Does the applicant hold a specified qualification?

12. Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/013. In this case, the applicant holds a Master of Professional Accounting (Advanced) from Western Sydney University which is a qualification specified in that instrument.

13. Accordingly, cl.485.231(1) is met.

    Was the applicant’s qualification conferred or awarded by a specified educational institution?

14. Subclause 485.231(2) requires the applicant’s qualification or qualifications to be conferred or awarded by an educational institution specified by the Minister. The relevant instrument for this purpose is IMMI 13/031.

15. In this case, the applicant’s qualification was conferred or awarded by Western Sydney University, which is an educational institution specified in that instrument.

16. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

17. 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.

18. 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:

    ·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.

19. ‘Registered course’ and ‘completed’ are defined terms (see r.1.03 and r.1.15F). 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.

20. Having considered the evidence before it, the Tribunal sought confirmation from Western Sydney University in regard to when the results of the applicant’s supplementary (final) exam were finalised by the University.

21. On 25 June 2019, the University confirmed the following:

    “ The change of grade was approved by the Dean of the School of Law on Friday 27 October 2017 after 3:00pm and sent through to the Examinations Unit. The student record was updated on Monday 30 October 2017”.

22. In Sapkota v MIAC, Cowdroy J held the relevant date for determining when a student has completed the academic requirements is the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the institution.[1] In this case the University has advised that the Dean of the School of Law approved the applicant’s grade on Friday 27 October 2017 and forwarded to the Examinations Unit for updating of the student’s record.

    [1] Sapkota v MIAC [2012] FCA 981 (Cowdroy J, 7 September 2012) at [26], dismissing an appeal from Sapkota v MIAC [2012] FMCA 137 (Cameron FM, 1 March 2012). Although at [25] Cowdroy J referred to the point where the result of assessment for the final course of item of assessment required to complete the course has been made ‘publicly available’, at [26] this appears to be clarified as being the date on which results are finalized by the institution such that a student would be able to find out whether they had been satisfied if they contacted the institution. Sapkota was followed in Bhagat v MIBP [2014] FCCA 2198 (Judge Hartnett, 23 September 2014) where the Court rejected the applicant’s contention that the relevant date for the 6 months requirement was the day on which he received confirmation that he had successfully completed and met the requirements of his Diploma, holding that the applicant was required to have completed the academic requirements of his diploma in the relevant period and did so outside that time constraint.

23. In consideration of the new evidence received by the Tribunal, the Tribunal is satisfied that the applicant completed his Master of Professional Accounting (Advanced) on 27 October 2017 and lodged his visa application on 30 October 2017, which was in the 6 months immediately before the application was made.

24. The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.

25. Accordingly, cl.485.231(3) is met.

26. On the basis of the above findings, the Tribunal finds that the first named applicant meets cl.485.231. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

27. Mrs Thi Trang Vi, applied on the basis of being a member of the family unit of the first named applicant, Mr Canh Vuong Nguyen. The application by Mrs Thi Trang Vi will be determined by reference to the outcome of Mr Canh Vuong Nguyen’s application on remittal to the Department for consideration.

    DECISION

28. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.231 of Schedule 2 to the Regulations.

    Karen McNamara
    Member