BHAGAT v Minister for Immigration

[2014] FCCA 2198

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHAGAT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2198

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – Skilled (Provisional) (Class VC) visa – academic requirements required to be completed in the six months immediately prior to the visa application being lodged – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.15F(1), Schedule 2; cl. 485.213(a)

Sapkota v Minister for Immigration and Citizenship [2012] FCA 981

Venkatesan v Minister for Immigration and Anor [2008] FMCA 409

Applicant: HEMEN BHAGAT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1991 of 2013

Judgment of: Judge Hartnett

Hearing date: 23 September 2014

Delivered at: Melbourne

Delivered on: 23 September 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Mr Petrie

Solicitors for the respondents: Clayton Utz Lawyers

ORDERS

1. The Application filed 20 November 2013 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1991 of 2013

HEMEN BHAGAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 28 October 2013 (‘the Decision Record’). In that decision, the Tribunal affirmed a decision of the First Respondent by his delegate (‘the delegate’) not to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 visa.

2. The Applicant filed his Application on 20 November 2013.  In support, he filed an Affidavit sworn by him on 20 November 2013.  In that Affidavit, the Applicant said:-

   “The reason for my judicial review application is unreasonable delay caused by the misinformation given to me by the college about the completion date of my course.”[1]

   [1] Applicant’s Affidavit sworn 20 November 2013 at [8].

3. In the grounds of application, as set out in the Application filed 20 November 2013, the Applicant claimed the decision of the Tribunal was attended by jurisdictional error on the basis that:-

   “(1) Applicant was misled and confusion was created by the institution were he completed his studies regarding the completion date of his course.

   (2) Applicant at the time of and preceding application was a student and searching for work, applicant did not have enough money to consult an immigration consultant at that time.”

4. The First Respondent sought that the application be dismissed and that costs follow the event.  The First Respondent relied upon the evidence before the Court as contained in the Court Book filed 15 January 2014 and the Outline of Submissions filed by the First Respondent on 16 September 2014.  Registrar Caporale had, on 5 February 2014, ordered that the Applicant file and serve written submissions and an amended application, if any, but the Applicant failed to do either of those things. 

5. The Applicant is a citizen of India.  He is 27 years of age.  He has completed a number of courses in this country in the hospitality and cooking areas.  The last course successfully completed by him was a Diploma in Hospitality (SIT50307).  He commenced such course on 28 October 2010 and completed it on 28 April 2011. 

6. On 20 November 2011, the Applicant applied to the Department of Immigration of Citizenship (as it then was) (‘the Department’) for a Skilled (Provisional) (Class VC) visa.  He relevantly nominated his occupation as cook. 

7. The Applicant subsequently provided the Department with a number of documents in support of his visa application which included:-

   a)a Certificate IV in Hospitality, Commercial Cooking (SIT40407) from the Stefan Training Group which commenced on 27 April 2010 and was completed on 27 October 2010 (hereafter ‘the Certificate IV’); and

   b)a Diploma in Hospitality (SIT50307) from the Stephan Training Group which commenced on 28 October 2010 and, as stated earlier, was completed on 28 April 2011.

8. The Tribunal noted, in paragraph 13 of its Decision Record, that at the Tribunal hearing the Applicant stated that after completing the Diploma of Hospitality referred to above, he did not complete any other course prior to the making of his visa application. 

9. By letter dated 18 July 2012, the Department requested more information from the Applicant for the purposes of processing his visa application.  Specifically, the Department informed the Applicant that he must have satisfied the two year study requirement “in the period of 6 months ending immediately before the day on which the application was made” being a criterion for the visa prescribed by cl.485.213(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Department informed the Applicant that the qualifications provided to it by the Applicant did not satisfy cl.485.213(a) of Schedule 2 to the Regulations and requested that he provide evidence and satisfaction of that criteria. The Applicant’s response was to inform the Department that he relied on the Certificate IV.

10. On 6 September 2012, the First Respondent, by his delegate, refused to grant the Applicant the visa.  On 12 September 2012, the Applicant applied to the Tribunal for merits review of the delegate’s decision with the assistance of a lawyer and registered migration agent.  By letter dated 24 September 2013, the Tribunal invited the Applicant to appear before it on 25 October 2013 to give evidence and present arguments.  The Applicant appeared on that date and was assisted by his representative.

11. On 28 October 2013, the Tribunal affirmed the decision of the delegate not to grant the Applicant the Skilled (Provisional) (Class VC) Subclass 485 visa.

12. Before the Tribunal, the Applicant again nominated his skilled occupation as cook.  He referred to his completion of various post-secondary qualifications, all awarded by the Stefan Training Group which included the Certificate IV and Diploma (referred to in paragraph 7 above) and also an earlier Certificate III in Hospitality (Commercial Cookery) which he undertook from 26 October 2009 until 29 May 2010. 

13. At the Tribunal hearing, the Tribunal explained the requirements of “the Australian study requirement” (see paragraph 15 below) to the Applicant.  The Applicant stated he did not become aware of the date on which he completed his last qualification, the Diploma of Hospitality, until he attended the education provider on 1 June 2011 and collected a letter of completion dated 1 June 2011.  He therefore assumed that he had to lodge the visa application within six months after 1 June 2011.  His migration agent contended before the Tribunal that the Applicant did not complete the Diploma of Hospitality until 1 June 2011. 

14. The Tribunal found that the issue in the case before it was whether the Applicant met the Australian study requirement as required for the grant of a Skilled (Provisional) (Class VC) Subclass 485 visa. The Tribunal noted that cl.485.213(a) of Schedule 2 to the Regulations requires that the Applicant satisfy the Australian study requirement:-

    “in the period of 6 months ending immediately before the day on which the application was made”

15. The Tribunal noted that under r.1.15F(1) of the Regulations:-

    “(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.”

16. The Tribunal noted, amongst other considerations, that reg.1.15F(2) of the Regulations defined the word “completed” as set out in reg.1.15F(1) of the Regulations as meaning “in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award”. Also included in that subsection is the following note:-

    “The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.”

17. The Tribunal noted in paragraph 21 of its Decision Record that cl.485.213(a) of Schedule 2 to the Regulations requires that the Applicant satisfied the Australian study requirement in the period of six months ending immediately before the day on which the visa application was made. It noted that his visa application was made on 20 November 2011 and in paragraph 22 of the Decision Record said:-

    “Clause 485.213(a) therefore requires that the applicant must have satisfied the Australian study requirement in the period between 20 May 2011 and 19 November 2011.”

18. In response to the Applicant’s contention that he did not complete the Diploma of Hospitality until 1 June 2011 when he received the letter of completion of the same date, the Tribunal referred to the decision in Sapkota v Minister for Immigration and Citizenship in which Cowdroy J held that a course is completed for the purposes of cl.485.213(a) of Schedule 2 and reg.1.15F of the Regulations when its academic requirements have been satisfied, not when the person is given notification of his or her results.[2]  Thus, the Tribunal found that the Applicant completed the Diploma of Hospitality at Stefan Training Group on 28 April 2011, which was before the commencement of the six month period.  The Tribunal noted that was the date of completion that the Applicant proposed in his visa application.  There was no evidence before the Tribunal nor any claim by the Applicant that the Applicant had completed any other relevant studies in Australia in the period between 20 May 2011 and 19 November 2011.

    [2] [2012] FCA 981 at [26].

19. The Tribunal thus found the Applicant did not satisfy the Australian study requirement in the period of six months ending immediately before the day on which the application was made and therefore did not meet the requirements of cl.485.213(a) of Schedule 2 of the Regulations.

Consideration

1. The contention made by the Applicant that the relevant date should be 1 June 2011 being the day on which he received confirmation that he had successfully completed and met the requirements of the Diploma in Hospitality cannot be sustained in the face of the legislative regime as described above.  Cowdroy J rejected a similar contention to that the Applicant puts before the Court this day in the earlier referred to decision of Sapkotav Minister for Immigration and Citizenship wherein he held:-

   “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.”[3]

   [3] [2012] FCA 981 at [26].

2. Further, in Sapkota v Minister for Immigration and Citizenship,[4] Cowdroy J cited with approval the decision of Burchardt FM (as his Honour then was) in Venkatesan v Minister for Immigration and Anor where his Honour observed in relation to the distinction between academic and administrative requirements for the award of a degree:-

   “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.”[5]

   [4] [2012] FCA 981 at [25].

   [5] [2008] FMCA 409 at [17].

3. In line with these authorities, the Applicant was required to have completed the academic requirements of his diploma in the period of six months immediately before the date on which the visa application was lodged. He did so outside that time constraint.

4. The grounds of review as set out in the Applicant’s Application are not proper grounds of judicial review. The only matter which arose for the Court’s consideration this day was whether the Tribunal’s decision accorded with the statutory scheme for the grant of the relevant visa and the Court finds that it did. The Applicant’s diploma was relevantly completed on 28 April 2011, which was outside the window of time allowed in the statutory scheme. Therefore, the Applicant failed to satisfy cl.485.213(a) of Schedule 2 to the Regulations and therefore did not meet an essential requirement for the grant of the visa.

5. There is no jurisdictional error attending the Tribunal’s decision and the application must be dismissed with costs following the event.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  26 September 2014