1513809 (Migration)

[2016] AATA 4511

1513809 (Migration) [2016] AATA 4511 (12 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Minh Nguyen
Mr Rajak Apdul

CASE NUMBER:  1513809

DIBP REFERENCE(S):  BCC2015/1867037

MEMBER:Antonio Dronjic

DATE:12 October 2016

PLACE OF DECISION:  Melbourne

DECISION:The tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 12 October 2016 at 4:54pm

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 Immigration on 24 September 2015 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 29 June 2015. 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 (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 because the first named applicant (the applicant) did not satisfy cl.485.221 of Schedule 2 to the Regulations because the delegate found that the applicant lodged her application for a subclass 485 visa before she satisfied the Australian study requirement.

4. The applicants applied to the tribunal on 12 October 2015 for review of the delegate’s decision. With the application they submitted a copy of the primary decision record dated 24 September 2015.

5. On 1 September 2016, the tribunal wrote to the applicants advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the hearing on 22 September 2016.

6. The first named applicant appeared before the tribunal on 22 September 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

7. At the commencement of the hearing, the applicants’ representative provided legal submissions arguing that the applicant’s results related to the final exam were released on the University student portal on 21 June 2016. It was conceded in the submissions that the date of issue of the Statement of Results by the Victoria University is 29 June 2015. The representative referred the tribunal to a decision in Sapkota v MIAC [2012] FCA 981, where the Federal Court held that a course is completed when the institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution.

8. The representative submitted the following documents:

   ·Copy of the applicant’s Academic Transcript issued by the Victoria University dated 29 June 2015;

   ·Copy e-mail from Victoria University International Enrolment Team, dated 20 September 2016 confirming that the official results release date was 29 June 2015 and that ‘student would have been able to access this result on 29 June 2015’.

9. The applicant is 34 years of age, married female national of Vietnam. She first arrived in Australia in August 2008 as a holder of a Student visa subclass 573. By 30 November 2012, she has completed a Bachelor Degree in Banking and Finance.

10. She commenced her Masters in accounting course at Victoria University in February 2013. The applicant gave evidence that she had to repeat one subject (Issues in Contemporary Accounting) during the first semester of 2015 as she previously failed to pass this exam. She stated that she has undertaken this exam on 1 June 2015 and find out the results on 21 June 2015 using the University Student portal.

11. She confirmed that she lodged a subclass 485 visa application on 29 June 2015 and that her student visa remained valid until 30 August 2015.

12. I noted that the applicant submitted copy of her Academic Transcript that was issued by the Victoria University on 29 June 2015. I further noted that the correspondence received from Victoria University International Enrolment Team, dated 20 September 2016 indicate that the official results release date was 29 June 2015. I asked the applicant to provide additional documentary evidence that will confirm that she satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made, being the 29 June 2015. I inverted the representative to submit further legal submissions and documentary evidence on or before 6 October 2016.

13. On 6 October 2016, the applicant’s representative provided further submissions together with:

    ·Copy of the Official Letter of Completion issued by Victoria University dated 26 July 2015;

    ·Copy applicant’s COE as evidence that the Master’s Degree course commencement date was 1 January 2015 and the course end date 30 July 2015; and

    ·Copy letter from Victoria University dated 3 October 2016 stating that the applicant completed her Master’s Degree and was eligible to graduate on 29 June 2015

14. In her submissions, the representative wrote that that the applicant made inquiries with Victoria University and from all their available records, the date the results were released officially is 29 June 2015. They were unable to provide a record supporting the applicant’s claims that the exam release dates was on 21 June 2015. It was conceded that the relevant date in issue is therefore 29 June 2015.

15. The representative argues that cl.485.221 is worded differently from cl.485.231(3) that is relevant to post-study work stream visa applicants as cl.485.231(3) contains word ‘ending’ immediately before the day the application was made and cl.485.221 does not. It was further submitted that, as per the Acts Interpretation Act 1901 s36, something expressed to end before a specified day, does not include that day. Regulation 485.231(3) could not therefore be argued to include the day of the application. It was submitted that the relevant clause (cl.485.221), however does not include the word end / ending, which may allow some degree of flexibility in its interpretation.

16. The representative submitted that ‘Based on the submitted evidence the applicant completed her course on 29 June 2015. She lodged the application the night of 29 June 2015 once she had received a copy of her academic transcript earlier that day’.

17. It was further submitted that the intention behind this regulation is clearly to prevent recent graduates in Australia from extending their stay in Australia for as long as possible before applying for the 485 visa as a last resort and not to prevent applicants from lodging the visa application as soon as they have completed their course. The applicant held a valid student visa at the time she lodged the application, and did not need to submit the application on that day in order to remain lawful in Australia.

18. The applicant submitted that:’ literal reading of a statute may be displaced by another construction where a literal meaning will lead to absurd or inconvenient results’. The applicant relied on Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321:

    "Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations … the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

19. It was further submitted that cl.485.221 is satisfied by the applicant, as based on the evidence provided; she had completed her course prior to lodging her application. Relevantly, had she waited a few hours to lodge the application, there would be no issues in dispute and the visa would have been granted. ‘A broad interpretation is therefore justified, the applicant had completed her course as at the morning of 29 June 2015, which is ‘immediately before’ the time when she lodged the application that night’.

20. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 of Schedule 2 to the Regulations. This 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). The issue in the present case is whether the applicant meets this requirement.

22. Based on the Academic Transcript from Victoria University provided by the applicant with her review application, applicant’s submissions of 6 October 2016, letter from Victoria University dated 3 October 2016 stating that the applicant completed her Master’s Degree and was eligible to graduate on 29 June 2015 and e-mail from Victoria University International Enrolment Team, dated 20 September 2016 confirming that the official results release date was 29 June 2015 and that ‘student would have been able to access this result on 29 June 2015, I find that the applicant completed her Masters’ Degree on 29 June 2015.

23. I considered the decision in Sapkota v MIAC [2012] FCA 981 where the court held that the relevant date for determining when a student has completed the course is the date when the education institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution. Cowdroy J at paragraph 26 stated:

    ‘Given that a decision as to whether a student has satisfied the requirements of a course is entirely a matter for the education institution, the point at which the student actually learns of the result, or the date when the education institution informs the student via letter, email or otherwise of the student’s results is not relevant for determining the date when a student has completed the academic requirements. The relevant date is the date when the education institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution. After this date a student would be able to contact the education institution to find out whether they had satisfied the necessary requirements’.

24. In this case, documentary evidence referred to in paragraph 22 of this decision, including the letter from the education provider stating the applicant completed the course on 29 June 2015 clearly showed that this was the date at which the university was satisfied the applicant had completed the course requirements.

25. Based on the departmental records and oral evidence given by the applicant at the hearing, the tribunal finds that the applicant lodged the application for a subclass 485 visa on 29 June 2015 being the same day when she completed her Masters’ course.

26. As stated above, cl.485.221 of Schedule 2 to the Regulations require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day (emphasis added) the visa application was made.

27. I considered the legal submissions provided by the applicants’ representative on 6 October 2016 and accept that cl.485.221 and cl.485.231(3) are worded differently as cl.485.231(3) contains word ‘ending’ whist cl.485.221 does not.

28. The central question in this review application is whether the language used in cl.485.221, namely, that the applicant must satisfy the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (emphasis added) can be interpreted to mean that that the applicant meets the requirement of this clause if he or she completed the ‘Australian study requirement’ in the 6 months on the day when he or she lodged visa application.

29. I my view, the ordinary meaning of the phrase ‘immediately before the day the visa application was made’ used in cl.485.221, is clear and incapable of being interpreted to mean anything else but what is stated in the regulation. If the legislator intended to allow the applicants lodgement of the visa applications on the same day when they satisfied the ‘Australian study requirement’ they would have used different wording in the regulations.   

30. The applicant submitted that:’ literal reading of a statute may be displaced by another construction where a literal meaning will lead to absurd or inconvenient results’. The applicant relied on Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.

31. I am not satisfied that by accepting the ordinary meaning and grammatical sense of the wording used in cl.485.221 would lead to absurd results in this case.

32. Based on the evidence before me, I find that the first named applicant did not satisfy the Australian study requirement in the 6 months ending immediately before day on which the visa application was made. Therefore, the applicant does not meet the requirements of cl.485.221.

33. On the basis of the above findings, the first named applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

34. As the first named applicant does not satisfy the criteria for this visa, the second named applicant, as a member of the first named applicant’s family unit, is unable to satisfy the cl 485.311 of the Regulations.

    Recommendation for Ministerial Intervention Pursuant to s.351 of the Act

35. The applicants’ representative submitted and I accept that the application of relevant legislation in this case may lead to unfair or unreasonable result. I accept the applicants’ submissions that the intention behind cl.485.221 is to prevent recent graduates in Australia from extending their stay in Australia for as long as possible before applying for the 485 visa as a last resort and not to prevent applicants from lodging the visa application as soon as they have completed their course. I considered the applicant’s movement records and accept that she held a valid student visa at the time she lodged the application (until 30 August 2015), and did not need to submit the application on 29 June 2015 in order to remain lawful in Australia.

36. I considered the applicants’ case and Minister’s guidelines on ministerial powers. I am satisfied that that this case exhibits unique or exceptional circumstances and will refer the matter to the department.

    DECISION

37. The tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Antonio Dronjic
    Member