Mohd Ammarr Bin Mohd Aripin (Migration)

[2024] AATA 290

Mohd Ammarr Bin Mohd Aripin (Migration) [2024] AATA 290 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Mohd Ammarr Bin Mohd Aripin

CASE NUMBER:  2116822

HOME AFFAIRS REFERENCE(S):          BCC2020/2356657

MEMBER:K. Chapman

DATE:9 February 2024

PLACE OF DECISION:  Brisbane

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 09 February 2024 at 5:27pm

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 – date of satisfying the academic requirements for the award – university staff notified completion of academic requirements – 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, 2.26

CASES

Ali v MICMSMA [2021] FCA 1311
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 2 November 2021, to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 23 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. In this matter, 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 the applicant did not satisfy cl 485.231, due to a lack of satisfaction that his qualification of the Doctor of Philosophy was completed in the 6 months ending immediately before the day the visa application was made. Therefore, the delegate was not satisfied the applicant met the ‘Australian study requirement’ in the required period prior to the visa application being lodged. The Tribunal notes that the applicant completed his Doctorate at the Queensland University of Technology (QUT). He submitted to the Tribunal a raft of documentation from that institution regarding the completion date of his studies.

4. The applicant appeared by telephone before the Tribunal on 30 January 2024 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by telephone. The Tribunal was impressed by the applicant’s direct and fulsome evidence provided at the hearing. Accordingly, the Tribunal finds the applicant to have provided honest evidence and it is afforded high weight.

5. The applicant requested time to lodge post-hearing material. The Tribunal granted this request. Following the hearing, the applicant submitted a further letter from QUT regarding his study completion date.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the circumstances relevant to this review, cl 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 issue in the present review is whether the applicant meets those requirements.

   Does the applicant hold a specified qualification?

8. 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 LIN 23/023. In this matter, the applicant holds a Doctor of Philosophy which is a qualification specified in that instrument.

9. Therefore, the applicant satisfies cl 485.231(1).

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

10. 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 LIN 23/021. In this matter, the applicant’s qualification was conferred or awarded by Queensland University of Technology (QUT) which is an educational institution specified in that instrument.

11. Therefore, the applicant satisfies cl 485.231(2).

    Does the applicant meet the Australian study requirement?

12. Clause 485.231(3)(a), as is relevant to this review, requires that the applicant met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.

13. Pursuant to 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.

14. ‘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 review, 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.

15. The Tribunal notes that in the Federal Court matter of Sapkota v MIAC [2012] FCA 981 (7 September 2012), Cowdroy J [at 26] held that the relevant date to be considered, with regard to the completion of a degree, is the date when the student satisfies the academic requirements for the award. The date of submission of the final piece of assessment is not the relevant date, nor is the date when the institution informs the student of the results, and nor is the date of the formal conferral of the degree.

16. Further, in the Federal Court matter of Ali v MICMSMA [2021] FCA 1311 (27 October 2021), McKerracher J [at 39, 48 and 53] held that the academic requirements for a degree are satisfied when the relevant study is assessed to be satisfactory, as distinct from the subsequent dates of ‘ratification and conferral.’ Accordingly, it is the date of completion of the academic requirements for an award that is the relevant date to consider for the purposes of cl 485.231(3). Of note, McKerracher J [at 57-58] held that it is for the Tribunal, on review, to determine the ‘point in time’ that an applicant’s study was assessed to be satisfactory. In doing so, the Tribunal must reach its own state of satisfaction based upon the evidence before it and must not be ‘confined to the view’ of the educational institution. Indeed, the Tribunal may draw ‘sensible or ready inferences’ from the evidence before it. Additionally, McKerracher J [at 60] also referred to an applicant being informed of completion by their academic supervisor as a potential matter of relevance.

17. The present review concerns an applicant who completed a Doctor of Philosophy course. It is important, in the view of the Tribunal, to consider that such a course of study has submission and approval of a thesis as its central requirements, rather than the passing of individual units of study, as is more common in other courses. The Tribunal notes that the applicant submitted to the Department and the Tribunal a range of documentation from QUT regarding the completion date of his Doctorate. That documentation, when read together, creates a confusing impression regarding the completion date of the applicant’s studies.

18. The applicant informed the Tribunal, at the review hearing, that he contacted QUT to confirm his completion of the Doctorate, prior to the lodgement of the Subclass 485 visa application. In response to his enquiry, QUT issued him with a letter dated 22 September 2020, confirming he completed the Doctorate, although there is a degree of equivocation as to the final date of completion. The applicant adamantly maintained he had been advised by QUT staff, at that time, that he met the academic requirements of his course of study. Indeed, he highlighted that his thesis had been approved by his supervisor well before 22 September 2022 and around that time it was published on the internet.

19. The applicant also submitted a letter from QUT dated 30 January 2024, clarifying his course completion date. That correspondence, in part, indicates that the research component of the applicant’s course was completed on 3 April 2020 and the final copy of his thesis was submitted on 17 September 2020. Furthermore, it indicates no further changes were made to the thesis following that submission. Additionally, this correspondence cites dates in October 2020, pertaining to the finalisation of the course.

20. In the view of the Tribunal, a pernickety approach to assessing the point in time that the applicant completed the academic requirements for the Doctorate is unhelpful. Rather, a holistic assessment is required. Thus, careful regard must be had to the clarifying correspondence from QUT of 30 January 2024, in combination with the other evidence submitted by the applicant. The Tribunal notes that it has assessed the credibility of the applicant to be high, having taken his evidence at the review hearing. Accordingly, the Tribunal is satisfied that he provided truthful evidence during the course of the review. In particular, the Tribunal accepts that the applicant was told by QUT staff that he had completed his course requirements upon publication of his thesis, which was prior to the time of application for the visa. Of note, in the view of the Tribunal, the dates in October 2020, cited in certain QUT correspondence, relate to the ‘ratification’ of the award, in the sense postulated in Ali v MICMSMA [2021] FCA 1311 by McKerracher J.

21. On balance, following careful consideration of the available evidence, the Tribunal is satisfied that the applicant completed the Doctor of Philosophy on 22 September 2020, as he met the academic requirements for the award on that date. The Tribunal also accepts that confusion has arisen through QUT issuing various letters, by different authors, regarding the applicant’s study completion date. Importantly, the Tribunal accepts the applicant’s account of being informed by QUT staff that he had completed the academic requirements for his Doctorate no later than 22 September 2020. It does so, given its satisfaction as to the applicant’s honesty.  

22. Based on the above evidence, the Tribunal is satisfied the applicant completed a degree (as defined in reg 2.26AC (6)) in the six months immediately before the visa application was made. The Tribunal is further satisfied that the qualification was as a result of a course that met the requirements of reg 1.15F(1). Accordingly, the Tribunal finds that the applicant’s study, for the specified qualification, satisfied the Australian study requirement in the 6 months immediately before the day the visa application was made. Therefore, the applicant satisfies cl 485.231(3).

    CONCLUSION

23. Having regard to all relevant matters, the Tribunal finds that the applicant satisfies cl 485.231. The appropriate course of action is, therefore, to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. 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.

    K. Chapman
    Member