Nguyen (Migration) - [2017] AATA 2790

Nguyen (Migration) [2017] AATA 2790 (15 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Thu Thao Nguyen
CASE NUMBER:  1606836
DIBP REFERENCE(S):  BCC2016/698581
MEMBER:Wan Shum
DATE:15 November 2017
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 criterion for a Subclass 485 visa:
·cl.485.221 of Schedule 2 to the Regulations

Statement made on 15 November 2017 at 3:09pm
CATCHWORDS
Migration – Skilled (Provisional)(Class VC) visa – Subclass 485 – Australian study requirement met – In 6 months immediately preceding the date of the visa application
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.111, cl 485.221, r 1.03, r 1.15F, r 1.15F(1),
r 1.15F(2), r 2.26AC(6), IMMI 09/040
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 Immigration on 26 April 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 18 February 2016. 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).
The delegate refused to grant the visa because the applicant had completed her study more than 6 months before she applied for the visa and did not satisfy cl.485.221 of Schedule 2 to the Regulations.
The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent.
The applicant appeared before the Tribunal on 28 September 2017 to give evidence and present arguments.
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 includes cl.485.221 of Schedule 2 to the Regulations which requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets that requirement.
Does the applicant meet the Australian study requirement?
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; 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…

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.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2017] AATA 2790
Case: [2017] AATA 2790
Decision Date: 15 November 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Ms. Nguyen for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream. The central dispute concerned whether Ms. Nguyen satisfied the Australian study requirement, a criterion stipulated by clause 485.221 of Schedule 2 to the Migration Regulations 1994. This requirement mandates that an applicant must have completed their Australian study within the six months immediately preceding the date of their visa application.

The primary legal issue before the Tribunal was to determine the actual completion date of Ms. Nguyen's Bachelor of Business in Hotel Management course. This was crucial because the visa application was lodged more than six months after one of the provided completion dates, but potentially within the six-month window of another. The Tribunal had to reconcile conflicting evidence regarding this completion date, including letters from the educational institution and the applicant's own statements and academic transcript.

The Tribunal's reasoning focused on the definition of "completed" in relation to a qualification, which means meeting the academic requirements for its award. While Ms. Nguyen's application form indicated a completion date of 30 October 2015, and a letter from The Hotel School Sydney stated May 2015, her academic transcript suggested completion of units in Session 1 of 2015. Ms. Nguyen also explained that she had to sit a supplementary exam in October 2015 for a failed subject, and she considered the date she received the results of this exam as her completion date. The Tribunal found that the applicant's explanation regarding the supplementary exam and the official completion date being in November 2015 was credible, suggesting that the earlier completion date of May 2015 was not accurate for the purposes of meeting the visa requirement.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with a direction that Ms. Nguyen satisfied the Australian study requirement as per clause 485.221 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.

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 includes cl.485.221 of Schedule 2 to the Regulations which requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made. The issue in the present case is whether the applicant meets that requirement.Does the applicant meet the Australian study requirement? 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; 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 rr.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 (r.1.15F(2)). 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 (IMMI 09/040). The applicant indicated on her application form that she had completed a Bachelor of Business Hotel Management at the Hotel School Sydney, Southern Cross University on 30 October 2015. However, the letter of completion from The Hotel School Sydney provided to the department states that she completed the course in May 2015. This was more than 6 months before the day on which the visa application was made and the delegate refused the visa. On review, the Tribunal has been provided with a copy of the delegate’s decision record and another completion letter from The Hotel School Sydney dated 25 May 2017. In this letter it states the course completion date of 23 November 2015. A copy of the applicant’s academic transcript was also provided, which indicates that she was given Advanced standing in 12 units and completed 8 units in Session 1 and 2 of 2014, and a further 4 units in Session 1 of 2015. This suggests to the Tribunal that the applicant had completed her studies in Session 1 of 2015, which would be consistent with a course completion date of May 2015 and not November 2015. At the hearing, the Tribunal discussed with the applicant her study in Australia. The applicant confirmed that she had begun studying a Bachelor of Business Degree in Marketing at CSU in 2013 and then transferred to a Bachelor of Business in Hotel Management at SCU, the Hotel School Sydney. She said that she had not completed her studies in May 2015 as she had failed one of the subjects. She said she had to sit a supplementary exam for the Introduction to Business Law in October 2015. The Tribunal noted that she had indicated on her visa application form that she had completed her studies on 30 October 2015. The applicant said that she assumed she that was the date of completion because it was when she found out the results of the supplementary exam. But that the official date of completion according to the University was in November 2015.

Decision

Reasons for decision

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 criterion for a Subclass 485 visa:·cl.485.221 of Schedule 2 to the Regulations.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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