Goyal (Migration)

[2021] AATA 2304

Goyal (Migration) [2021] AATA 2304 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Goyal

CASE NUMBER:  1827780

HOME AFFAIRS REFERENCE(S):          BCC2018/2855254

MEMBER:K. Chapman

DATE:18 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.  

Statement made on 18 June 2021 at 3:32pm 

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – Australian study requirement – relevant course completed within 6 months before visa application made – medical issue prevented applicant taking final exam – supplementary exam the last day student visa valid – told by department officer to apply for current visa before student visa expired – provisional completion letter dated date of final exam/application, final letter and academic transcript dated about one week later – no intentional breach of requirements – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cl 485.231

CASE

Sapkota v MIAC [2012] FCA 981

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 3 September 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant, Mr Ashish Goyal, applied for the visa on 30 July 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 (‘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 they were not satisfied that the applicant completed his study of the Master of Accounting and Financial Management within the 6 months immediately prior to the visa application, therefore not meeting the requirements of cl.485.231 of Schedule 2 to the Regulations.

4. On 21 September 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. He subsequently submitted a written statement, ‘Provisional Completion Letter’ from La Trobe University dated 30 July 2018 and a letter from the University dated 19 July 2018 confirming his entitlement to a supplementary examination.

5. The applicant appeared by telephone before the Tribunal on 27 May 2021 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone. Following the review hearing, the applicant submitted several pieces of medical evidence to the Tribunal.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 (emphasis added). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

8. 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 the Master of Accounting and Financial Management which is a qualification specified in that instrument.

9. Accordingly, cl.485.231(1) is met.

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

10. 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.

11. In this case, the applicant’s qualification was conferred or awarded by La Trobe University (CRICOS Provider code 00115M) which is an educational institution specified in that instrument. 

12. Accordingly, cl.485.231(2) is met.

    Does the applicant’s study for the specified qualification meet the Australian study requirement?

13. 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.

14. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed one 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.

15. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.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: instrument LIN19/085.

16. The applicant submitted to the Tribunal various documents, including a ‘Provisional Completion Letter’ from La Trobe University dated 30 July 2018. This letter indicates that the applicant successfully completed the Master of Accounting and Financial Management on 30 July 2018. During the review hearing, the Tribunal sought further particulars regarding this correspondence. The applicant explained that due to a medical issue he did not undertake his final examination during the usual examination period. Rather, he took a supplementary examination on 30 July 2018. At that time, the applicant was concerned because his Student visa was valid until 30 July 2018 and he wanted to apply for the Subclass 485 visa before its expiry.

17. According to the applicant, prior to 30 July 2018, he telephoned the Department of Home Affairs and was told to apply for the Subclass 485 visa before his Student visa expired, so as to not become an unlawful non-citizen. He was apparently told to submit his confirmatory documentation once the Degree was awarded. The applicant also made arrangements with La Trobe University to issue him with the ‘Provisional Completion Letter’ on 30 July 2018 after he had taken his final examination. The applicant further advised that he applied for the Subclass 485 visa on 30 July 2018 and he obtained his qualification on 8 August 2018 then submitted relevant documentation to the Department. When asked by the Tribunal the date his final examination paper was marked, the applicant opined it would have been around 3 or 4 August 2018. The applicant also indicated that he did not submit the ‘Provisional Completion Letter’ to the Department.   

18. During the review hearing, the Tribunal asked the applicant when he completed the academic requirements for the award of the Master of Accounting and Financial Management? The applicant initially replied that his Degree was issued on 8 August 2018, however he finished all of his examinations on 30 July 2018. He explained that he only undertook one subject per semester due to a medical issue which had troubled him since 2015 and required surgery. The Tribunal notes that the applicant submitted medical evidence confirming his medical condition and its veracity is accepted.

19. The Tribunal advised the applicant that he submitted a letter from La Trobe University dated 9 August 2018 to the Department indicating he qualified for admission to his Degree on 8 August 2018 and he also submitted his Academic Transcript indicating the same date of qualification completion. The Tribunal raised with the applicant that given he applied for the Subclass 485 visa on 30 July 2018, these documents from the University might tend to suggest that he did not meet the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made, inviting his comment. The applicant replied that he was not sure of the applicable law, he was confused when his Student visa expiry and final examination were on the same day and he went with the solution purportedly offered by the Departmental Officer on the telephone.

20. The Tribunal raised with the applicant that given the letter he submitted to the Department from La Trobe University dated 9 August 2018 and his Academic Transcript both indicate he qualified for admission to his Degree on 8 August 2018, and are more recent documents than the ‘Provisional Completion Letter’ he submitted to the Tribunal from the University dated 30 July 2018, this might tend to suggest that he actually completed the academic requirements for his award on 8 August 2018 and therefore he does not meet the requirements for the Subclass 485 visa, inviting his comment. The applicant responded by outlining that he felt hopeless at that time, he took the advice of the Departmental Officer, it was confusing given the date of his final examination was the same day as his visa expiry and he did not know about the relevant 6 month time frame. He added that he obtained his Degree on 8 August 2018 and didn’t think much about the legal requirements then.

21. When asked by the Tribunal if he accepted that the academic requirements for his award were met on 8 August 2018, the applicant advised that completion date was 30 July 2018 because he completed his last examination on that day. When asked by the Tribunal if he accepted that his final examination would not have been graded on 30 July 2018, the applicant advised that he did.

22. The Tribunal raised with the applicant that the evidence tends to suggest he satisfied the academic requirements for his award on 8 August 2018 and therefore he did not meet the requirements for the Subclass 485 visa, inviting his comment. The applicant responded that he took the advice of the Departmental Officer on the telephone, he had health issues at the time and on 30 July 2018 he took the supplementary examination. The Tribunal raised again with the applicant that the evidence tended to suggest he did not satisfy the requirements for the visa, inviting his comment. The applicant had nothing further to add.

23. At the conclusion of the review hearing, the applicant asked that his total circumstances be taken into account, including his lack of professional advice, medical condition, advice from the Departmental Officer by telephone and his successful completion of study. The applicant indicated that he wanted to obtain professional experience in his field in Australia and he requires the Subclass 485 visa to do so. The Tribunal has carefully considered all evidence given at the review hearing, in conjunction with the documentary material submitted.

24. The Tribunal has carefully considered all of the evidence before it in this matter. The Tribunal notes that in the Federal Court matter of Sapkota v MIAC [2012] FCA 981 (7 September 2012), Cowdroy J [at 26] held the relevant date for determining when a student has completed the academic requirements for a qualification, is the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the institution. The date of submission of the final piece of assessment is not the relevant date, and nor is the date when the institution informs the student of the results, or the date of the formal conferral of the degree or other qualification at a graduation ceremony.

25. It is worth pausing to reflect that the applicant applied for the Subclass 485 visa on 30 July 2018. In the view of the Tribunal, the applicant completed the academic requirements for his award on 8 August 2018. This is for the following reasons. The most recent documentation from La Trobe University confirms 8 August 2018 to be the date of award completion, the Tribunal prefers this more contemporary documentation to the earlier ‘Provisional Completion Letter’ on account of its currency and substantive character, the applicant agreed at hearing that his final examination undertaken on 30 July 2018 would not have been graded on that day, and at various points in the hearing the applicant referred to obtaining his award on 8 August 2018.

26. The Tribunal accepts that the applicant suffered from a medical condition between 2014 and 2019 which impacted his studies (noting the applicant advised the condition was successfully treated in 2019). Furthermore, the Tribunal accepts that the applicant formed the impression from a telephone interaction with a Departmental Officer that he could apply for the Subclass 485 visa on 30 July 2018 and then submit substantive academic completion documents subsequently. Additionally, the Tribunal accepts that the applicant was unrepresented, confused as to the status of the law and did not intentionally seek to breach any migration legislation.

27. However, the Tribunal must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to the applicant. The Tribunal has no power to waive the temporal limitation specified at cl.485.231(3) in relation to completion of the Australian study requirement.

28. Following careful consideration, on balance, the Tribunal finds that the applicant did not satisfy the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. Rather, he did so on 8 August 2018, which is after he made the application for the Subclass 485 visa. Accordingly, cl.485.231(3) is not satisfied by the applicant.

29. On the basis of the matters outlined above, the Tribunal finds that the applicant does not satisfy cl.485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa and, as this is the only relevant subclass, the decision under review will be affirmed.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    K. Chapman
    Member