Ali (Migration)

[2022] AATA 4300

Ali (Migration) [2022] AATA 4300 (29 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jahanzeb Ali

CASE NUMBER:  2118525

HOME AFFAIRS REFERENCE(S):          BCC2018/922017

MEMBER:Alison Mercer

DATE:29 November 2022

PLACE OF DECISION:  Melbourne

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 485.231 of Schedule 2 to the Regulations.

Statement made on 29 November 2022 at 10:38am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Federal Court remittal – post-study work stream – Australian study requirement within 6 months before making visa application – letter of completion dated after application made – academic requirements completed when necessary results achieved, not after purely administrative steps taken – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), rr 1.15F(1), 2.26A, Schedule 2, cl 485.231(3)

CASES

Ali v MICMSMA [2021] FCA 1311

Mahohoma v MICSMMA [2020] FCCA 2206

Venkatesan v Minister for Immigration [2008] FMCA 409

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 23 March 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 February 2018. 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 (Cth) (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 applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations, which required that he met the Australian study requirement (as defined in r.1.15F of the Regulations) in the 3 years immediately before he made his visa application. The delegate found that the applicant’s letter of completion from Edith Cowan University (ECU) dated 8 March 2018 stated that the completion date for the applicant’s Master of Engineering degree was 5 March 2018, after his visa application was made on 26 February 2018.

4. The Tribunal received a review application from the applicant on 27 March 2018. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Kamaldeep Kaur Gill, as his representative and authorised recipient for correspondence. Subsequently, he terminated this authority and appointed himself as authorised recipient for correspondence in December 2021.

5. The Tribunal conducted a hearing on 5 July 2019, and on the same date, made a decision to affirm the Department’s refusal decision. In doing so, it found that cl.485.231 was not met as the ECU letter of completion for the applicant’s Master of Engineering degree stated that the completion date was 5 March 2018.

6. On 29 July 2019, the applicant applied for judicial review of that decision in the Federal Circuit Court of Australia (FCCA). On 19 October 2020, the FCCA dismissed the applicant’s review application.

7. On 9 November 2020, the applicant sought judicial review of the FCCA decision with the Federal Court of Australia (FCA). On 27 October 2021, the FCA made a decision to allow the applicant’s appeal and set aside the Tribunal decision of 5 July 2019 and remitted the matter back to the Tribunal for reconsideration according to law: Ali v MICMSMA [2021] FCA 1311.

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find it favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

10. 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?

11. 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’s degree in Engineering which is a qualification specified in that instrument.

12. Accordingly, the Tribunal finds that cl 485.231(1) is met.

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

13. 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.

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

15. Accordingly, the Tribunal finds that cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

16. 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.

17. 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:

    ·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.

18. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (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: IMMI 09/040.

19. The Tribunal has reviewed the Department’s records, the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the information from ECU provided by the applicant (including his academic transcript and letter of completion) and is satisfied that the applicant’s Master of Engineering degree:

    ·is a registered course as defined by r.1.03 – as required by r.1.15F(1)(a);

    ·was completed in a total of at least 16 calendar months – as required by r.1.15F(1)(b);

    ·was completed as a result of at least 2 academic years of study – as required by r.1.15F(1)(c);

    ·was conducted in English – as required by r.1.15F(1)(d); and

    ·was undertaken while the applicant held a visa (or visas) authorising him to study in Australia – as required by r.1.15F(1)(e).

20. The Tribunal is therefore satisfied that the applicant meets the Australian study requirements in r.1.15F of the Regulations. The issue is whether he met this requirement in the 6 months immediately before he made his visa application on 27 February 2018.

21. It is not disputed that the ECU letter of completion dated 8 March 2018 states that the completion date for the applicant’s Master of Engineering degree is 5 March 2018. This was the completion date accepted by the delegate, the Tribunal (differently constituted) and the FCCA.

22. However, the reasoning in these earlier decisions on this issue was found to be incorrect by McKerracher J in Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (MICSMA) [2021] FCA 1311 of 27 October 2021. In his judgment, his Honour found that 5 March 2018 was the date of ratification of the applicant’s results by the University’s Board of Examiners (see paragraph [14]). His Honour further found that the applicant received notification from the University that he had passed his final subject in the early hours of the morning on 27 February 2018 (see paragraph [12]). His Honour found that the earlier decision makers had fallen into error by treating the view of the University (that the completion date was 5 March 2018) as determinative of the issue of when the applicant had ‘completed’ his course as per r.2.26A.

23. McKerracher J cited with approval the judgment of Burchardt FM in Venkatesan v Minister for Immigration [2008] FMCA 409, in which his Honour stated at paragraphs [15] and [17] that:

    15. In my view, the proper meaning to be ascribed to the item is that you complete the academic requirements for a course when you achieve the necessary results or credits to enable you to be awarded the relevant degree or diploma.

    …

    17. To adopt what I hope is a commonsense approach, there was nothing more for the Applicant to do of an academic nature after 2 August 2006. What was required, admittedly, were certain steps, but they were purely administrative steps that did not require any form of academic effort by Mr Venkatesan nor any evaluation of any such effort by the university…

24. As noted above, the applicant accessed the results of his final exam online in the early hours of 27 February 2018, the day he lodged his subclass 485 visa application. However, as noted by McKerracher J at [58], ‘the ready inference in a case where results are published in the earlier minutes of a particular day is that the results were assessed as being satisfactory no later than the previous day. It may be that university staff are working at midnight on such matters, but it is not at all uncommon for courts to infer in the absence of evidence to the contrary, that business activities are conducted within business hours.’

25. From this, the Tribunal infers that the result of the applicant’s final exam was finalised no later than 26 February 2018, the day before he lodged his visa application. As noted by McKerracher J at [10], if it was the same date as the date of the visa application, this would not satisfy cl.485.231: Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2206 per Kendall J (at [51]).

26. However, the Tribunal considers it reasonable to apply the inference raised by McKerracher J in these circumstances to find that the completion date – the date on which there was nothing more for the applicant to do of an academic nature – was 26 February 2018, when the university finalised his results.  It may even be possible to argue that the completion date was earlier, given 22 February 2018 was the date on which the applicant completed his final exam and had been told on that date by his lecturer that he had passed the exam.

27. On either scenario, the Tribunal finds that the applicant completed his course in the 6 month period immediately before he made his visa application on 27 February 2018.

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

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

30. On the basis of the above findings, the Tribunal finds that the 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.

    DECISION

31. 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 485.231 of Schedule 2 to the Regulations.

    Alison Mercer
    Member