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

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

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).
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.
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).
On the 1 March 2019, the Tribunal invited the applicants to attend a hearing on 9 April 2019.
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.
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
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.”
The Tribunal resolved this matter on the papers.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the…

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: [2019] AATA 3697
Decision Date: 27 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by Mr. Canh Vuong Nguyen. Mrs. Thi Trang Vi’s application, made as a member of Mr. Nguyen’s family unit, was to be determined by reference to the outcome of his application.

The central legal issue before the Tribunal was whether Mr. Nguyen met the study requirements for the Subclass 485 visa, specifically clause 485.231 of Schedule 2 to the Migration Regulations 1994. This clause requires the applicant to hold a specified qualification awarded by a specified educational institution, and that their study for that qualification satisfied the ‘Australian study requirement’ in the six months immediately preceding the visa application.

The Tribunal found that Mr. Nguyen held a Master of Professional Accounting (Advanced) from Western Sydney University, which satisfied the requirements for a specified qualification awarded by a specified institution. However, the Tribunal needed to confirm whether Mr. Nguyen's study met the ‘Australian study requirement’ as defined by regulation 1.15F. This requirement involves completing registered courses totalling at least 16 calendar months and at least two academic years of study (defined as at least 92 weeks), with all instruction in English, undertaken while holding a visa authorising study in Australia. The Tribunal sought confirmation from Western Sydney University regarding the finalisation of Mr. Nguyen's supplementary exam results.

The Tribunal remitted the applications for reconsideration, directing that Mr. Nguyen met the criterion under clause 485.231 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 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? 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. Accordingly, cl.485.231(1) is met.Was the applicant’s qualification conferred or awarded by a specified educational institution? 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. In this case, the applicant’s qualification was conferred or awarded by Western Sydney University, which is an educational institution specified in that instrument. Accordingly, cl.485.231(2) is met.Does the applicant’s study for the specified qualification meet the Australian study requirement? 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. 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. ‘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. 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.

Decision

Reasons for decision

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 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 McNamaraMember

Ratio Decidendi

Legal Principle Established

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