Kumar (Migration)

[2023] AATA 4265

Kumar (Migration) [2023] AATA 4265 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Praveen Kumar

REPRESENTATIVE:  Mr Alan Dino Duri (MARN: 1684393)

CASE NUMBER:  2114479

HOME AFFAIRS REFERENCE(S):          BCC2020/2331886

MEMBER:Alan McMurran

DATE:13 December 2023

PLACE OF DECISION:  Sydney

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 13 December 2023 at 3:33pm  

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – Australian study requirement – courses completed within 6 months before visa application – completion date – date of satisfying the Australian study requirement – university’s administrative delays – decision under review remitted          

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 485.111, 485.231 – 485.233; rr 1.03, 1.15, 2.26

CASES

Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
Venkatesan v MIAC [2008] FMCA 409

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 18 October 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 28 September 2021 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, Mr Praveen Kumar, a citizen of India, applied for the visa on 19 September 2020. 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.

3. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl 485.231, 485.232 and 485.233.

4. The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations because the delegate found that the applicant had not completed the study requirement within the 6 month specified period for completion of the course requirements, before lodgement. The decision record incorrectly refers to a female applicant/candidate, whereas the applicant is a 33 year-old male.

5. The applicant was represented in relation to the review.

   No hearing

6. Having considered the submitted documents the Tribunal finds that it can conclude the review under s 360(2)(a) of the Act.

7. The section provides that where the Tribunal considers it should conclude the review in the applicant’s favour on the basis of the material before it, it is not required to invite the applicant to appear.

8. Section 360(3) then provides that the applicant is no longer entitled to appear before the Tribunal.

   Tribunal Decision

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

   Background

10. The applicant was enrolled at The University of Sydney[1] (the course provider) for a degree course starting 5 March 2018. He was enrolled full-time until 30 November 2019, following which he was enrolled part-time from 24 February 2020 until 21 June 2020, with a course “Intensive” enrolment in the period 20 January 2020 to 1 March 2020.

    [1] Student number 309290619

11. The applicant provided the Department with a copy of a letter from the course provider stating that the applicant “completed the requirements” for his degree “as of 12 May 2021”.

12. The Tribunal wrote to the course provider on 27 October 2023. The emailed letter requested a response as to when the applicant had completed the course requirements, including all assessments and exams submitted for the award of the qualification, Master of Interaction Design and Electronic Arts.  The same day, the course provider requested the applicant’s authority and consent to provide the information.

13. On 2 November 2023, the Tribunal requested that the applicant provide his authority and on 8 November 2023, the applicant provided his authority and information disclosure release.

14. On 9 November the Tribunal emailed the course provider with the applicant’s disclosed release and authority, which communication was marked ‘return to sender’. The Tribunal re-sent the information.

15. On 10 November 2023, the course provider responded and confirmed that the date the applicant “met the academic requirement of the course is 12 May 2021”.

16. On 13 November 2023, the Tribunal wrote to the applicant under s 359A of the Act informing him that the available information indicates that he completed the course requirements on 12 May 2021, which was after he had lodged his application for the visa with the Department.

17. The applicant was requested to respond by 27 November 2023, failing which, the Tribunal may complete the review without taking any further action and without the right of the applicant to appear for a hearing.

18. On 24 November 2023, the applicant requested an extension of time to respond so as to provide more information “surrounding my completion date”. The applicant was granted an extension until 12 December 2023 to provide information and response.

19. On 11 December 2023, the applicant provided a detailed written response and submission from his representative, which is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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, and to have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.231(3)(a))

21. The regulation further provides that an applicant may satisfy the study requirement in the 12 months immediately before the day the visa application was made, if the applicant was unable to apply within 6 months because they were outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 (cl 485.231(3)(b)).

22. The issue in the present case is whether the applicant meets those requirements.

23. The alternative time frame provision cl 485.231(3)(b) does not apply in this instance because the applicant was not outside Australia at the time.

    Does the applicant hold a specified qualification?

24. Clause 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.

25. In this case, the applicant holds a Master of Interaction Design and Electronic Arts (by coursework),[2] which is a qualification specified in that instrument.

    [2] CRICOS code 088318F

26. Therefore the applicant satisfies cl 485.231(1).

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

27. Clause 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.

28. In this case, the applicant’s qualification was conferred or awarded by The University of Sydney (USYD) which is an educational institution specified in that instrument and registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

29. Therefore the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

30. Clause 485.231(3) requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

31. 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.

32. ‘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).

33. ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (reg 1.15F(2)).

34. 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:LIN 19/085.

35. The Tribunal finds on the available information that;

    a.The application for the visa in the Post-Study Work stream was lodged on 19 September 2020.

    b.The course provider has provided the applicant with a letter dated 12 May 2021 congratulating him “on completing the requirements for the course”. It then informs him about his graduation ceremony. The letter does not state the actual date of “completion”. The delegate relied upon the date of the letter as the “completion” date.

    c.The course provider’s letter does not state, as was found by the delegate in the decision on 28 September 2021, that “the applicant completed their course on 12 May 2021”. The delegate found subsequently, however, that the course was in fact “completed” on 12 May 2021.

    d.This was because the delegate had written to the applicant on 2 December 2020 and again on 15 June 2021, without receiving a reply, and seeking information described in its Checklist as : “Completion letter Australian qualifications”. The applicant did not respond, having already provided a copy of the university’s letter dated 12 May 2021.

    e.When the Tribunal approached the course provider on 9 November 2023, more than 2 years later, the University referred to its records.

    f.The course provider informed the Tribunal by email on 10 November 2023,  that:

    “I can confirm on behalf of the University the below details:

    met the academic requirement of the course is 12/May/2021

    The course start date 09/Feb/18

    The course end date 12/May/2021” [3]

    g.The asserted ‘course end date’ was not the date the applicant completed his course requirements

    h.The registered course information for the degree commenced in Semester 1 on 9 February 2018, and concluded with “Intensive February” 2020. The applicant could not have concluded the course requirements according to his recorded history with an “end date 12/May/2021”.

    [3] The email is signed off by the course provider’s Records Manager.

36. On 24 November 2023, the applicant replied to the Tribunal, when informed of the University’s response, that he would provide “a written testimonial from my professor surrounding my completion date”.

37. On 11 December 2023, following the granted extension, the applicant provided the Tribunal with a copy of his Official Academic Record. The degree was conferred at a ceremony on 7 October 2021, which is also not the applicant’s course completion date. The record discloses the “course history”.

38. Examining the detail of that history, it refers relevantly in 2020 to “Semester 1” completed March 2020, and “Intensive February” 2020. The record is signed off by Professor Philippa Pattison AO , Deputy Vice-Chancellor (Education) and dated as at the time of execution on 7 October 2021. The Tribunal accepts that record as the applicant’s ‘course history.

39. The letter had not been submitted to the Department when it was considering the application.

40. The applicant himself had made no attempt to explain to the Department from his viewpoint what he considered as the correct date for completion of his coursework.

41. This is understandable as the applicant does not have migration expertise on the relevant Regulations or their interpretation.

42. The applicant’s representative makes a detailed written submission to the Tribunal where he does make a submission as to what is the relevant completion date in order to meet the regulation.

43. It is convenient to set out the submission in full as follows:

    “Dear Registrar,

    Mr Kumar has appointed me to represent him in his current application before the Tribunal.

    I am aware that on 13 November 2013 you invited Mr Kumar to comment on or respond to information. I am also advised that you agreed to an extension of time request until 12 December 2023.

    Background

    From 2018 until 2020, Mr Kumar undertook a Masters in Interaction Design and Electronic Arts at Sydney University.

    Apart from normal coursework (and relevant to this application), a component of the course was a Graduate Internship.

    Mr Kumar completed his course (including the internship) by mid 2020.

    On 19 September 2020 Mr Kumar lodged an application for a Temporary Graduate (class VC) Temporary Graduate (Post- Study Work) (subclass 485) visa.

    However the University of Sydney “completion letter” indicates that Mr Kumar completed the course on 12 May 2021.

    It is the Department’s policy to accept the completion letter at face value. Unsurprisingly this is why Mr Kumar’s application was refused.

    However the facts and law are more nuanced

    The question in this case whether cl.485.231 of Schedule 2 to the Migration Regulations 1994 is satisfied. This in turn depends on whether Mr Kumar satisfied the Australian study requirement in there period six months immediately before the day the visa application was made.

    Response to s.359 letter

    Notwithstanding the completion letter, the simple fact is that Mr Kumar completed the course by mid 2020.

    As evidenced by the transcripts, Mr Kumar completed academic studies in June 2020.

    There was no further course work beyond June 2020, about three months before the Subclass 485 visa application.

    I am instructed that the delay in the completion letter involved administrative delays concerning the internship.

    The internship can be seen in the transcript for Semester 2 in 2019 with the code DESC9153.    

    According to the University of Sydney website units/DESC9153), the requirements for the internship are:

    The student must complete at least 120 hours of full or part-time experience, supervised by a practicing designer (or other professional depending upon the field). A log-book of each day's work, signed by the supervisor must be submitted on completion. A 2000-word report on the benefits of the internship must also be produced.

    Mr Kumar advised that he completed more that 120 hours experience by the end of 2019.

    You will note that unlike exams or assignments, there is no requirement in the internship module for there to be any qualitative assessment (unlike the other units which are graded). The requirements for DESC9153 are satisfied simply meeting the above criteria. You will notice that the code for his unit is “SR” or “satisfied requirements”.

    Essentially after completing the internship in late 2019 and the other units by mid-2020, there nothing further Mr Kumar could have done.

    It is not disputed that the University of Sydney “completion letter” indicates that Mr Kumar completed the course on 12 May 2021.

    If this letter is accepted at face value this would seem to suggest that Mr Kumar does not satisfy cl.485.231.

    However, I respectfully submit that case law indicates that “completed” is when a student achieves necessary results or credits to enable them to be awarded the degree and there was nothing more for the person to do of an academic nature.

    The authority for this is in Federal Court decisions such as Venkatesan v MIAC [2008] FMCA 409) and Sapkota v Minister for Immigration and Citizenship [2012] FCA 981 (7 September 2012).

    It follows that the relevant date for determining when the completion has occurred is the date on which the results are finalised by the University.

    The date of notification is NOT the relevant date as found in the Sapkota and Venkatesan decisions. Rather it is the date in which in reality the course was completed.

    It follows that it is my position that Mr Kumar satisfies cl.485.231 of Schedule 2 to the Migration Regulations 1994.

    If you require any further information do not hesitate to contact me on 0413 980 615 or by email at [email protected].

    Yours sincerely,
    Alan Duri MARN 1684393”

44. In summary, the representative submits that the completion date was in “June 2020”, by which time the applicant had completed all the academic requirements and internship (for practical coursework) and that there was nothing further the applicant could have done to meet the course requirements.

    Analysis

45. At first blush, it seems reasonable to conclude that the course provider’s letter of 12 May 2021 could be regarded as the course completion date, because it congratulates him on ‘completing’ the course. This is acknowledged by the applicant’s submission.

46. The Tribunal sees the communication as equally, a letter of congratulations, and providing information about conferral, but which itself does not specify the actual completion date.

47. It is unfortunate that the language used was not more specific, taking into account the letter was also sent by the University directly to the Department, and leaving the applicant then to explain. The Tribunal understands that the applicant is not migration-trained or adequately versed in interpreting the Regulations and only recently was compelled to seek assistance in that regard.

48. There is some law on the subject as referred to with the submission[4]. In Venkatesan, the court found  that: “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”. [5] The Federal Magistrate went on to conclude in the facts in that case that: “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 [the lodgment date]”[6].

    [4] Venkatesan v MIAC [2008] FMCA 409) and Sapkota v Minister for Immigration and Citizenship [2012] FCA 981

    [5] At [15] per Burchardt FM

    [6] Ibid at [16]

49. In Sapkota, the proposition is 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. The Federal Court followed the logic in Venkatesan that the term “completed” is not the date when the applicant is informed by the provider that the requirements have been met. Rather, it is the date when final examinations and assessments have become available. It is from then that the temporal period elapses in order to meet the lodgement requirement.

50. The applicant meets the provider’s requirements “for the final piece of assessment” for “progression through the course” when the provider publishes the results. [7] The question of whether an applicant completes the course requirements is a matter for the course provider. Similarly, when the provider publishes the applicant’s results, it means at that time that the provider has satisfied itself that the course requirements have been met and completed as assessed.

    [7] Sapkota at [25] per Cowdroy J

51. In considering the available information in this instance, the Tribunal finds that the applicant had completed his examinations and assessments including the final practical course work recorded in his logbook in March 2020, and by 21 May 2020 when the course officially ended. As submitted, the last date for completion occurred no later than June 2020 when he was advised, and that there was nothing further for him to do after June 2020 in order to meet the course requirements.

1. The academic record signed off by the professor supervising, aligns with the university dates for the relevant semesters taught in the period from 2018-2020 and when the course started and finished, and confirms the individual subjects for the course, and the fact they have been completed, together with the relevant grading.

2. The Tribunal considers further that as a matter of ‘common sense’[8], the applicant could not have completed the course requirements in May 2021, as the course for which the applicant had enrolled had concluded in March 2020, for both the academic component and the practical component. There is no evidence the applicant had re-enrolled for another course or to complete his study requirement more than 12 months later. Notification of results was made available in June 2020, after the course had ended and the requirements were completed.

   [8] Adopting the language of the Court in Venkatesan

3. As the application lodgement occurred in September 2020, the Tribunal finds that the qualification for the relevant degree was obtained within the 6 months immediately before the day the application was made, that is, by 21 May 2020, and “by June 2020” as submitted.

4. The facts are not without some uncertainty as the course provider’s records themselves seem to indicate. The Tribunal however is of the view on all the available information when considered cumulatively, that the correct and preferable decision places the completion date for the purpose of the temporal requirement at 21 May 2020, or as claimed, at the time of notification in June 2020.

5. Clause 485.231(3)(a) is therefore met.

   Findings

6. For the remaining requirements, on the available information, the Tribunal is satisfied that the qualification (as defined: see reg 2.26AC(6)) was completed in the 6 months immediately before the application was made and was:

   ·a registered course (as defined: see reg 1.03) 

   ·completed (as defined: see reg 1.15F(2)) in a total of at least 16 calendar months 

   ·as a result of at least 2 academic years (as specified) study, in this instance from 2018-2020.

   ·for which all instruction was conducted in English; and

   ·while the applicant was holding a valid visa authorising study.

7. The Tribunal finds therefore 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.

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

   Conclusion

9. On the basis of the above findings, the Tribunal finds that the applicant meets cl 485.231.

10. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

11. 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.

    Alan McMurran
    Member