Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3126
•19 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3126
File number(s): PEG 283 of 2019 Judgment of: JUDGE VASTA Date of judgment: 19 October 2020 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg 1.15F, cl 485.231
Cases cited: Llanos & Anor v Minister for Immigration & Anor [2018] FCCA 2148
Mahohoma v Minister for Immigration & Anor [2020] FCCA 2206
Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
Venkatesan v Minister for Immigration & Anor [2008] FMCA 409
Number of paragraphs: 32 Date of last submission/s: 19 October 2020 Date of hearing: 19 October 2020 Place: Brisbane Counsel for the Applicant: Mr Jones Solicitor for the First Respondent: Ms Ladhams ORDERS
PEG 283 of 2019 BETWEEN: JAHANZEB ALI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
19 OCTOBER 2020
THE COURT ORDERS ON A FINAL BASIS:
1.That the Applications filed 29 July 2019, amended on 23 October 2019 and further amended on 7 October 2020 are dismissed.
2.That the Applicant pay the costs of the First Respondent fixed in the sum of $5,400.
IT IS NOTED:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 5 July 2019, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the Applicant a skilled provisional class VC visa. On 29 July 2019, the Applicant asked this court to review that decision. In short compass, the Applicant was a student who had come here from Pakistan, arriving here in February 2015. He was completing his studies as a Master of Engineering.
His visa was to expire on 28 February 2018. After a person has completed a course of study, they can apply for a visa commonly known as a 485 visa. But to do so, they must apply for the visa within six months of the completion of an Australian study requirement. That is, that the visa application must be made on the day after completing such a requirement and within six months of that date.
What we have here is a very sad state of affairs. The Applicant, who was extremely diligent and who wanted to complete his degree and to do everything by the book, finalised the last part of his assessment for the Masters Degree on 22 February 2018. At some time between 12.01 am on 27 February 2018 and 1.09 am on 27 February 2018, the Applicant’s result for that particular final unit of assessment was published as a “PS-Pass Supplementary” result. At 1.09 am the Applicant applied for the visa. On 5 March 2018, the board of examiners at Edith Cowan University ratified the Applicant’s course completion.
The Applicant’s visa application was refused by the delegate for this reason: as he had to complete the Australian course of study no later than six months before making the application, the Applicant had actually applied for the visa before he had completed that Australian course of study.
The Applicant went to the Tribunal and made his submissions. The Applicant said that without any migration advice or assistance, and as soon as he had passed his last unit on 27 February 2018, he applied for the visa, thinking that he could attach his completion letter from the Edith Cowan University at a later date. He said that he was not aware of the “time of application” criteria.
The Applicant requested that Edith Cowan University board of examiners give him his completion letter earlier, but they only gave him a letter stating he had passed the supplementary exam, and he relied on this letter from ECU, dated 28 February 2018. If the Applicant had known that the completion letter was critical for his visa, he said he would have considered other options, rather than rushing through things on the last day of his student visa validity.
After the visa was refused, the Applicant went to ECU, which issued another letter dated 10 April 2019, which confirmed that he had passed his supplementary examination on 27 February 2018. The Applicant was only five days behind in submitting his completion letter and only lodged his 485 application on 28 February 2018 because his student visa was expiring that day.
The Applicant was a genuine student, had complied with all of his visa conditions and spent a considerable time in Australia, during which he completed his Masters course. Having regard to that situation, it is very easy to feel very sorry for the Applicant. Many occasions when these matters come before the Court as a review of a migration decision, it is where the visa Applicant has made an application for an equivalent 485 visa sometime that is objectively after the completion of the Australian course of study. In those matters the Applicants seek to persuade either the Tribunal and then the Court, that the course of study was completed on a day later than what objectively is found so that they come within that six month period. Here, the opposite has happened in that the Applicant may be seen to have “jumped the gun” and put in his application before it was that he really had completed the degree.
In this case, the Applicant is attempting to persuade the Court that a proper interpretation is that he had completed the degree by 26 February 2018 and not 5 March 2018. To get to this point, one has to understand what is meant by an Australian study requirement. The definition of an Australian study requirement is found under reg.1.15F of the Migration Regulations 1994 (Cth) (“the Regulations”). It is set out as follows below,
(1)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 real question is when has the person (in this case, the Applicant) completed such a degree, diploma or trade qualification. The letter given to the Tribunal, that was dated 10 April 2018, from the Edith Cowan University, gave this timeline. And the letter provided the following:
To Whom It May Concern,
This letter acts to provide a timeline surrounding Mr Jahanzeb Ali’s completion of the above course.
22 /02/2018 Mr Ali completed the supplementary exam for his final unit: ENS5240 Industrial Control.
27/02/2018 result for ENS5240 Industrial Control published as PS-Pass supplementary.
5/03/2018 Board of Examiners ratified Mr Ali’s course completion.
Despite Mr Ali completing his final unit successfully on 27th of February 2018, all students’ course completion requires ratification from the Board of Examiners, which involves a process that is not instantaneous. Accordingly, Mr Ali officially completed his course on 5th of March 2018.
The AAT found that the Applicant completed his Masters of Engineering on 5 March 2018, which is not within six months immediately before the application that was made on 27 February 2018.
In the hearing, the Tribunal explained to the Applicant that it had no discretion in relation to the “time of application” criteria and that, as ECU had clearly and consistently confirmed the date that he completed his Master of Engineering as being 5 March 2018, it was of the view that he, the Applicant, could not satisfy cl.485.231. And because he could not do that, then he did not meet the criteria and the Tribunal decision had to be affirmed.
The Tribunal expressed, as this Court does, sympathy for the Applicant’s situation. That it is quite evident when one considers that the reason the Applicant put the application in when he did, was that he did not want to be considered, at any time, residing in Australia unlawfully and he thought that that is what would happen if he did not put in the application until after 28 February 2018, when his visa expired. It is extremely unfortunate that the events make it look as though the applicant is being penalised for the diligence with which he has undertaken his visa application and his respect for the Australian migration system.
But this Court has to look at what is the reality and not what the Court would want the reality to be. The Applicant, in attempting to submit to this Court that the date of 5 March 2018 is not the date of completion, referred to three authorities.
These were a decision of my brother, Judge Burchardt, in Venkatesan v Minister for Immigration & Anor [2008] FMCA 409; a decision of Cowdroy J of the Federal Court in Sapkota v Minister for Immigration and Citizenship [2012] FCA 981; and, a decision of my brother, Judge Kendall, in Mahohoma v Minister for Immigration & Anor [2020] FCCA 2206.
In Venkatesan (Supra), what his Honour had to look at was whether the Applicant had, in the six months immediately before the day when the application was made, completed a degree for award by an Australian educational institution as a result of a course of study of at least two years. The terms of the Regulations were similar to the ones that exist now. And the principles applied by all the judges in those three authorities are still apposite here.
In Venkatesan (Supra), the Applicant applied for the visa on 13 February 2006. The Tribunal found that he completed his graduate diploma when his last result was entered into the student record on 2 August 2005, however there was evidence that the Applicant was awarded the diploma partly because of credit transfers for four subjects. The credit transfers were not formally recorded until 13 September 2005. Accordingly, the Applicant argued, on judicial review, that the Tribunal erred by not finding that he had not completed the diploma within six months of the application; that is, his application was 13 February 2006 and six months before that application was 13 August 2005. The last result was 2 August 2005 and the credit transfers were recorded on 13 September 2005. If it were that he completed the course on 13 September 2005, therefore his application was within the six months. His Honour said this, at paragraphs 15 to 18:
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.
16. It is clear beyond doubt that the Applicant had already completed and relevantly passed the relevant proportions of his course that gave rise to his credits well before August 2006.
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.
18. In these circumstances, in my opinion the Tribunal did not fall into error in its approach to this issue and the application must be dismissed.
In Sapkota (Supra), the Court was dealing with an analogous provision to the current 485 regulation, which has since been adjusted. But the provision was exactly the same as the present cl.485.231(3). In that case, the appellant applied for the 485 visa on 1 May 2009. The evidence was that he completed the diploma from August 2006 until 21 October 2008, which was the date when his results became available.
The appellant only received notification of his results in November 2008. However, the relevant institution indicated by letter that the appellant had completed the diploma on 26 September 2008. The Court said in that case, at paragraphs 23 to 26:
23. The Court considers that the definition of completion in reg 1.15F of the Regulations does not extend the date of completion to the date of the formal conferral of the degree at a graduation ceremony. A period of time elapses after the final grades for the course are awarded and the graduation ceremony when a number of administrative steps (e.g. finalising transcripts, testamurs, assigning students to graduation ceremonies which are only held periodically) are taken by the university without any academic effort on the part of the applicant. It seems that the date of completion would not extend to this period either.
24. However, the date at which one is taken to have ‘achieved the necessary results’ is also not the date of submission of the final piece of assessment. There are two necessary elements to achievement of academic results. One part is the student submitting all relevant items for assessment to the education provider. The second part is the education provider assessing these items and determining for itself whether the student has in fact achieved the academic result and awarding a result. The second part is essential. A student has no legal right to the award of a qualification unless a university decides for itself that the requisite requirements have been satisfied: see Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [96].
25. In the timeline between a student completing the final piece of assessment of a course of study and the education institution conferring the relevant award, there comes a point when the education institution satisfies itself that the requirements have been met. That point is reached where the result of assessment for the final course or item of assessment which the student is required to complete as part of the course of study has been made publicly available, assuming that the result of the final piece of assessment meets the institution’s requirements for progression through the course. The publication of such result is in effect a statement from the institution that the student has completed all of the necessary components for the degree to be awarded. Accordingly the Court reaches the same conclusion as Burchardt FM in Venkatesan at [17].
26. 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. Although the question of academic appeals would affect the point at which results are finalised, the issue does not arise in this case.
The Applicant argues that when one looks at those statements of authority, that the date upon which the ECU said that the Applicant had passed the final unit of his course was the date that he had completed the matter. That is, on what the university has said, that 27 February was when the mark of “Pass – Supplementary” had been given. The Applicant submits to me that that means that when what is said in Sapkota (Supra) is applied to these circumstances, that that point was reached where the result of assessment for the final course or item of assessment which Mr Ali was required to complete as part of a course of study, was made publicly available. It assumed that the final piece of assessment met the institution’s requirements for progression through the course.
The publication of such result was, in effect, a statement from the institution that the student has completed all of the necessary components for the degree to be awarded. There is little doubt that that result was publicly available on 27 February 2018, therefore when one looked at this aspect, that must be the relevant date when the education institution decided that the academic requirements had been met. I am not convinced of this argument. Whilst the statements made in those two cases are binding upon me, it does not seem to me that what the Applicant is contending is actually what these two cases are saying.
In Llanos & Anor v Minister for Immigration & Anor [2018] FCCA 2148, I had a similar situation present itself before me. The Applicant had completed his final assessment but the faculty board had not yet met. The faculty board later met and ratified the results. That was some days after those final results had been submitted. I found, in that case, that the degree was completed on the day that the faculty board met and ratified the results; and I said that it is clear that the course is not completed until the education provider says that it is completed.
That statement is totally consistent with what Judge Burchardt and Cowdry J have said in the respective matters. This is because, as Cowdroy J said in Sapkota (Supra), that the final piece of assessment has to meet the institution’s requirements for progression through the course.
The institution’s requirements for progression through the course were spelled out in the letter that ECU sent to the Applicant on 10 April 2018 which, again I repeat myself, said despite Mr Ali completing his final unit successfully on 27 February 2018, all students’ course completion requires ratification from the board of examiners, which involves a process that is not instantaneous and accordingly, Mr Ali officially completed his course on 5 March 2018. That is then consistent with what Cowdroy J said in Sapkota (Supra) when he said 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.
Clearly, on what the evidence is, that date is 5 March 2018. For that reason, I cannot find that there has been any jurisdictional error illustrated by the Tribunal.
But even if I were satisfied that the date of completion should not be 5 March 2018, the Applicant submits that there is a factual question as to whether it was 27 February 2018. In Mahohoma (Supra), Judge Kendall confirmed that the six months immediately before the day on which the application was made, does not include the day on which the application was made. As the application was made at 1.09 am on 27 February 2018, the Applicant would have had to complete his degree on or before 26 February 2018 for the application to have been valid.
The evidence here from Edith Cowan University is that the result for ENS5240, published as “PS – Pass Supplementary” was on 27 February 2018. That means that, if it were that I found that that was the date upon which the point had been reached where the result of assessment for the final course had been made publicly available and therefore that was, in effect, a statement from the institution that the student had completed all of the necessary components, the Applicant submits to me that there is the possibility that, because that result was published sometime between 12.01 am and 1.09 am on 27 February 2018, the university had come to that point of satisfaction on the 26th, given the time of day. And if it was on the 26th, then the matter is within the timeframe.
The Applicant did not put this to me as the only conclusion, but said that the matter should be remitted back to the Tribunal for the Tribunal to determine as a matter of fact, what the date actually was.
I do not accept this submission because the authorities are very clear that the point of satisfaction by the institution must be an objective one; whether that be the publication of the results; whether that be the board ratifying the matter or whether that be some other event that is able to be objectively viewed. The submission of the Applicant is that if the matter is to be referred back to the Tribunal, the Tribunal should be asked to engage in some form of speculation and to possibly arrive at a conclusion that has no objective verification.
For that reason, even if I were in error as to the date of completion being 5 March, the error would not be a jurisdictional one because the earliest date at which the Australian course of study could have been completed was 27 February 2018 and that was not within the six month period prior to the application being made.
I must say, it gives me absolutely no pleasure to come to these conclusions. As I have said during the course of the hearing, the bona fides of this Applicant are not in question, unlike so many other matters that come before this Court. It is quite regrettable that the letter of the law has meant this terrible result is inevitable for the Applicant. I wish that it were not so and that there were something that I could do about it. But that is not my job and I have to look at this matter dispassionately and according to law.
And according to law, there is no jurisdictional error that has been established and therefore the application must be dismissed with costs in the sum of $5400.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 17 November 2020
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