Nguyen (Migration)

Case [2023] AATA 372

Nguyen (Migration) [2023] AATA 372 (13 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anh Vu Nguyen
Mrs Thi Xuan Trang Cao
Master Cao Thang Nguyen

REPRESENTATIVE:  Mr Tim Pham

CASE NUMBER:  1925269

HOME AFFAIRS REFERENCE(S):          BCC2019/3250906

MEMBER:Katie Malyon

DATE:13 January 2023

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 criteria for a Subclass 485 visa:

·cl 485.221 of Schedule 2 to the Regulations; and,

·cl 485.222 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction in relation to the third named applicant.

Statement made on 13 January 2023 at 9:52 am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –Australian study requirement – qualification completed within 6 months before application made closely related to nominated application – qualification in global project management and occupation of software engineer – studies compared with whole of nominated occupation – relationship must be more than merely complementary – favourable skills assessment does not refer to this qualification – previous courses included project management subjects – course required by employer – project management tasks form main part of occupation – members of family unit – third applicant child now Australian citizen with no jurisdiction to review – ‘closely related’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), Schedule 2, cls 485.221, 485.222
Australian Citizenship Act 2007 (Cth), s 12(1)(b)

CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon [2014] 227 FCR 525
Setiya v MICMSMA [2021] FCCA 544
Singh v MICMSMA [2021] FedCFamC2G 208
Talha v MIBP [2015] FCAFC 115

Uddin v MIAC [2010] FCA 1281

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 20 August 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicants applied for the visas on 28 June 2019. Visa Class VC contains Subclass 485. 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.

  3. The delegate refused to grant the visas on the basis the primary visa applicant, Vietnamese national Mr Anh Vu Nguyen, did not satisfy cl 485.222 of Schedule 2 to the Regulations because Mr Nguyen’s Master of Global…

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Details
AGLC
Nguyen (Migration) [2023] AATA 372
Case
[2023] AATA 372
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the applications of Mr. Nguyen and his family members for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The primary dispute concerned whether Mr. Nguyen satisfied the Australian study requirement and whether his completed qualification was closely related to his nominated occupation. A secondary issue arose regarding the jurisdiction over a third applicant, Master Cao Thang Nguyen, who had become an Australian citizen.

The Tribunal was required to determine two key legal issues. Firstly, whether Mr. Nguyen met the criteria for satisfying the Australian study requirement, specifically that he completed his qualification within six months immediately preceding his visa application. Secondly, the Tribunal had to assess whether the degree, diploma, or trade qualification used to satisfy the Australian study requirement was "closely related" to Mr. Nguyen's nominated skilled occupation.

The Tribunal found that Mr. Nguyen had indeed completed his Master of Global Project Management (Advanced) within the six months prior to his visa application, thus satisfying clause 485.221 of Schedule 2 to the Regulations. However, the critical question of whether this qualification was "closely related" to his nominated occupation as a software engineer remained to be determined. The Tribunal noted that the relationship between the qualification and the occupation must be more than merely complementary, and that previous courses undertaken by Mr. Nguyen had included project management subjects. The Tribunal also observed that project management tasks formed a significant part of the nominated occupation. Regarding the third applicant, the Tribunal determined it had no jurisdiction to review his application as he had acquired Australian citizenship.

Consequently, the Tribunal remitted the applications for reconsideration. The Tribunal directed that the first applicant, Mr. Nguyen, be considered to meet both clause 485.221 and clause 485.222 of Schedule 2 to the Regulations, indicating that the assessment of the "closely related" requirement was to be undertaken during the reconsideration. The Tribunal explicitly stated it had no jurisdiction concerning the third applicant.

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 As the primary visa applicant Mr Nguyen 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 provisions 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): and, 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). The issue in the present case is whether Mr Nguyen meets both of these requirements.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: (a)that are registered courses; and,(b)that were completed in a total of at least 16 calendar months; and,(c)that were completed as a result of a total of at least 2 academic years study; and,(d)for which all instruction was conducted in English; and,(e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. The terms ‘degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined term: see regs 1.03, 1.15F and 2.26AC(6) of the Regulations and cl 485.111 of Schedule 2 to the Regulations. The word ‘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 registered under the Education Services for Overseas Students Act 2000 LIN 19/085. In his visa application form, Mr Nguyen declared that he had undertaken multiple studies in Australia leading to his holding the following qualifications: 1)Master of Global Project Management (Advanced) completed 27 May 2019 at Torrens University;2)Master of Information Technology (Professional Computing) completed June 2014 at Swinburne University of Technology (Swinburne); and,3)Advanced Diploma of Computer Science completed 25 July 2011 at Swinburne. Mr Nguyen has provided evidence of letters of completion and academic transcripts to confirm that he has undertaken the studies outlined above. Based on the evidence before it, including information in the Department’s file, the Tribunal is satisfied that Mr Nguyen completed his Master of Global Project Management (Advanced) in the 6 months immediately before the visa application was made on 28 June 2019.

Decision

Reasons for decision

As discussed during the hearing, the Tribunal has no jurisdiction in relation to the third named applicant, Master Cao Thang Nguyen, since he is now an Australian citizen. Master Nguyen was born in Australia on [Date] and acquired Australian citizenship 10 years later on 12 June 2021 consistent with s 12(1)(b) of the Australian Citizenship Act 2007.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 criteria for a Subclass 485 visa:·cl 485.221 of Schedule 2 to the Regulations; and, ·cl 485.222 of Schedule 2 to the Regulations.The Tribunal has no jurisdiction in relation to the third named applicant. Katie MalyonMember

Ratio Decidendi

Legal Principle Established

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