Kumar (Migration) - [2023] AATA 1447

Kumar (Migration) [2023] AATA 1447 (15 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandeep Kumar
REPRESENTATIVE:  Mr Amrit Pal Jagota (MARN: 0532014)
CASE NUMBER:  2006738
HOME AFFAIRS REFERENCE(S):          BCC2020/186827
MEMBER:Alan McMurran
DATE:15 May 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 15 May 2023 at 10:04am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – two academic years of relevant study – courses completed within 6 months before visa application – application lodged before official Completion Letter – university delayed transcript – education provider acknowledged academic requirements were completed earlier – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.231; rr 1.03, 1.15
CASES
Ali v MICMSMA [2021] FCA 1311
Mahohoma v MICMSMA [2020] FCCA 2206
Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
Venkatesan v MIAC [2008] FMCA 409
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 6 April 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, Mr Sandeep Kumar, a 26 year old citizen of the Republic of India, applied for the visa on 27 January 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.
In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which includes cl 485.231. The visa allows international students who have recently completed their degree qualifications, within 6 months before the date of lodgement of their application, to live, work and study in Australia temporarily.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.231 of Schedule 2 to the Regulations at the time of lodgement[1], because the delegate found that the applicant did not meet the Australian study requirement. He had provided a letter of completion from Elite Education Institute which stated a completion date for his degree on 28 January 2020, one day after lodgement[2] of the application on 27 January 2020.
[1] 27 January 2020
[2] 28 January 2020
The applicant appeared in person before the Tribunal on 12 May 2023 to give evidence and present arguments. The applicant was represented in relation to the review. Both the applicant and representative had made written submissions before the hearing. The applicant was asked if he was ready to proceed and indicated he had no further submissions to make and did not require an adjournment or extension of time.
Decision
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements in regulation 485.231 for the criteria in the post-study work stream. In particular, whether the applicant satisfied the Australian study requirement [r.485.231(3)(a)].
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 relevant provision sets out as follows:
485.23 Criteria for Post-Study Work stream
[Note: These criteria are only for applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Post-Study Work stream.]
485.231
(1A) This clause does not apply to an applicant who meets the requirements of clause 485.232, 485.233, 485.234 or 485.235.
(1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2) Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3) The applicant's study for the qualification or qualifications satisfied the Australian study requirement:
(a) in the period of 6 months immediately before the day the application was made; or
(b) if the Minister is satisfied that the applicant was unable to apply during the period mentioned in paragraph (a) because the applicant was outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020--in the period of 12 months immediately before the day the application was made
The Tribunal deals with each of those criteria as set out below.
Relevantly, the applicant has made only one application for the visa on 27 January 2020 and has remained onshore throughout the period of application and for this review. Accordingly, the provisions (inclusive) in clauses 485.232 to cl 485.235 do not apply.
Does the applicant hold a specified qualification?
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 Bachelor of Business (Professional Accounting) which is a qualification[3] specified in that instrument.
[3] Bachelor Degree
Accordingly, cl 485.231(1) is met.
Was the applicant’s qualification conferred or awarded by a specified educational institution?
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. It requires the conferral of degree by a registered organisation in the Commonwealth Register of Institutions for Overseas Students (CRICOS).
In this case, the applicant’s qualification was conferred or awarded by Elite Education Institute in Sydney, which is an educational institution[4] registered on the CRICOS register as specified by the instrument.
[4] CRICOS provider code 03390A
Accordingly, cl 485.231(2) is met.
Does the applicant meet the Australian study requirement?
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.
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.
‘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. [5]
[5] LIN 19/085
On the available information and as per the applicant’s written submissions, which the Tribunal accepts following the hearing, the Tribunal finds that the applicant completed a registered course over a period of at least 16 calendar months, from enrolment on 5 March 2018 to finishing all assignments and examinations on 14 November 2019. The degree awarded was based on at least 2 academic years study. The course was face-to-face tuition with all instruction in English. The applicant was the holder of a relevant student visa authorising the study for the period and which visa expired on 2 February 2020.
Did the applicant satisfy the Australian study requirement in the period of 6 months immediately before the day the application was made?
Subclause 485.231(3) was the provision which troubled the delegate, who found that:
a.the CRICOS institution had formally notified the applicant he had “satisfactorily met all course requirements and has successfully completed a Bachelor of Business (Professional Accounting)” by letter dated 28 January 2020 (“completion letter”)
b.that the completion letter was the “official Completion Letter” [6]
c.the letter “confirms” the applicant completed the course on 28 January 2020
d.the application was lodged on 27 January 2020
e.the application was not lodged in the 6 months’ window immediately before the day the visa application was made[7], as the applicant had lodged his application (1 day too late) on 28 January 2020.
[6] Decision at p 2
[7] the 6 months window being from 27 July 2019 expiring on 27 January 2020
The applicant was asked at the hearing about the lodgement of his application and the timing. He confirmed he did not receive any professional advice at the time. He said the institutional teaching for his course finished in early November 2019, when he sat for his final exams. The last exam was on 14 November 2019. He said he was notified about 1 week afterwards, he thought about 20 November 2019, of the examination result and that he was successful.
The applicant submitted email communications exchanged with the university administration concerning his ‘completion’. The applicant provided as requested on 26 November 2019 the forms for his attendance at a graduation ceremony, to which he was invited, the ceremony occurring in April 2020. He completed an “Alumni Association Membership Form” also dated 26 November 2019 showing “course completed”.
On 6 January 2020, the applicant attempted to follow up by email with the administration, requesting his transcript, in order to “renew my visa status”. He followed up by email on 7 January 2020 and asked if anything further was required. He said at hearing that he also telephoned the office then as he was becoming more and more anxious about the imminent end of his current student visa on 2 February 2020. He said by 27 January, he still had not received his ‘transcript’ from the university and was advised by student colleagues to lodge his application anyway, as the course had been completed in November 2019. He did so and then received the institution’s letter on 28 January 2020, which he duly provided to the Department, and which lead to the refusal because the letter simply stated: “The student commenced study in this course on 05/03/2018 and completed studies on 28/01/2020.”
In the application lodged, the applicant states in answer to the question on his Australian educational qualifications that his degree dated “from 5 Mar 2018 to 1 Nov 2019”. The applicant relied on this statement in his application and at the time of lodgement. He told the hearing that he did not appreciate at the time that when providing the letter from the institution to the Department, it might appear the ‘completion date’ was not in fact November 2019.
The applicant agreed at the hearing that the simple factual decision for the Tribunal was a finding as to when the applicant’s course was ‘completed’. He submitted that the course was completed as he had asserted on 14 November 2019, when all examinations and teaching had ceased, that he had no ‘supplementary’ requirements for completion of his course, and that he had been notified of a successful outcome following the examinations, by the end of November of 2019. He asserted that he had met the academic requirements when he submitted his forms for graduation and alumni admission in November 2019. He asserted that there was nothing further remaining at that stage for him to do to ‘complete’ the course. The timetabling for the course further showed that all teaching and formal requirements had ended by November 2019.
Considerations –court authorities and department policy
Applicants in the Graduate Work stream and the Post-Study Work stream must meet the Australian study requirement. ‘Australian study requirement’ is defined in reg 1.15F.[8] A person meets the ‘Australian study requirement’ if they have completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses.
[8] reg 1.03 as amended by Migration Amendment Regulations 2009 (No. 4) (Cth) (SLI 2009, No 84).
The subclause 485.231(3) imposes a temporal requirement in respect of which there is no discretion. The course must be completed in the 6 month ‘window’ prior to the day before lodgement, the day of lodgement not being included.[9] An applicant completes the academic requirements for a course when the applicant achieves the necessary results or credits to enable the applicant to be awarded the degree or diploma.[10]
[9] Mahohoma v MICMSMA [2020] FCCA 2206 at [36] and [40
[10] Venkatesan v MIAC [2008] FMCA 409 at [15]; Sapkota v MIAC [2012] FCA 981 at [25]-[26]; Ali v MICMSMA [2021] FCA 1311 at [46]. In Ali v MICMSMA [2021] FCA 1311 the Court relied on existing authority in Venkatesan v MIAC [2008] FMCA 409 and Sapkota v MIAC [2012] FCA 981 and at [39] held that the date of completion is not what the university considers it should be, yet rather what Parliament says it is. Accordingly, at [48] the Court in Ali v MICMSMA [2021] FCA 1311 accepted that the language of reg 1.15F(2) referring to the ‘academic requirements’ of a degree, is comfortably met by study assessed as satisfactory and grounding the award of a degree.
On the basis of current authority, the Tribunal finds that ‘satisfied’ in accordance with the criteria in cl 485.231(3) means having “met the academic requirements for its award”.[11]
[11] reg 1.15F(2), introduced by SLI 2008, No 56.
On 4 May 2023 the Tribunal wrote to the institution and asked for confirmation of the completion by the applicant of the Bachelor of Business (Professional Accounting) course and when that occurred.
On 10 May 2023, Elite Education Institute responded to the Tribunal with an email stating:
” This letter is in relation to the Completion Letter issued to Mr. Sandeep Kumar (D.O.B: 19/07/1996), dated 28/01/2020.
According to our records Mr. Sandeep Kumar completed the last units necessary for his course completion on 14 November 2019 at which time he was eligible for completion.
Following the satisfactory completion of all Course Requirements, Mr. Kumar’s results and student files were reviewed and processed in accordance with the Institute’s formal qualification approval process, and he was subsequently issued with a formal Completion Letter on 28 January 2020.”
In Sapkota v Minister for Immigration and Citizenship [2012] FCA 981(“Sapkota”) the Federal Court reviewed the authorities and summarised the question of the date when an applicant achieves the necessary results as follows: “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 court further found that “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 is not relevant for determining the date when a student has completed the academic requirements. The relevant date is 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.”[12]
[12] Sapkota at [26]
The education provider in this instance has acknowledged that as at 14 November 2019, the applicant had completed the last units necessary for the course and “was eligible for completion”. The issuing of the formal letter on 28 January 2020 was an administrative step, and not a step taken in order to meet the academic requirements for the award.
In this instance, the Tribunal is satisfied and finds on the available information that the applicant completed those requirements for his course and degree by 14 November 2019. That is because by that date, he had completed all examinations, course teaching had ended, and he was advised he had been successful.
The fact the institution chose to date a letter of ‘completion’ at 28 January 2020, when it issued the letter at the repeated request of the applicant, was an administrative step and did not of itself identify when the applicant had actually completed and achieved the necessary results or credits to satisfy the Australian study requirement and to enable him to be awarded the degree.
Conclusion
The Tribunal finds that the applicant’s study for the specified qualification satisfied the Australian study requirement by 14 November 2019 and in the 6 months immediately before the date of the visa application on 27 January 2020.
Accordingly, cl 485.231(3) is met.
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
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