Vagdhan (Migration)

[2021] AATA 2312

Vagdhan (Migration) [2021] AATA 2312 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rushita Jayant Vagdhan

CASE NUMBER:  1832231

HOME AFFAIRS REFERENCE(S):          BCC2018/3168389

MEMBER:Antonio Dronjic

DATE:12 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 May 2021 at 5:07pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Australian study requirement not met – payment of the application fee was not received by the Department and matched to the applicant’s visa application –  unique or exceptional circumstances – Referral to the Minister –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 45A, 65, 351
Migration Regulations 1994, rr 1.15, 1.03, 2.12, Schedule 2, cl 485.231

Education Services for Overseas Students Act 2000

CASES

Mohammed v MIBP [2015] FCA 184

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 16 October 2018 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 applied for the visa on 22 August 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 (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 include cl 485.231.

3. 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 was not satisfied that the applicant held a specified qualification that satisfied the Australian study requirement and had been completed in the period of 6 months ending immediately before the day the visa application was made: cl 485.231(3).

4. According to the primary decision record submitted by the applicant to the Tribunal, on 21 February 2018, the applicant completed a Master of Practising Accounting at Swinburne University of Technology. As she lodged an online application for a Subclass 485 visa on 22 August 2018, the delegate concluded that this course was not completed in the last 6 months ending immediately before the day the application was made and therefore the applicant was unable to satisfy the requirements of cl 485.231(3).

5. The applicant disputed that the visa application was lodged on 22 August 2018. She wrote to the Department on 18 October 2018 stating that the internet application was in fact lodged on 21 August 2018 at 10:08pm. The application fee was paid by BPAY fund transfer. The applicant attached a copy of the payment receipt received from the Department and a copy of an ANZ Bank transaction receipt.

6. On 19 October 2019, the Department wrote back to the applicant acknowledging that the applicant commenced the payment process on 21 August 2018 at 10:04pm and clarifying that the payment was not received by the Department and matched to the applicant’s visa application until 22 August 2018 at 2:45pm. The Department enclosed a copy of the receipt the applicant received once her payment was cleared and application lodged. The Department further informed the applicant that:

   An application is not deemed to have been lodged until the payment is received by the Department. In particular, BPAY payments will take up to 1 day to be matched to an application. Your application will not be submitted until the BPAY payment is matched to your application. This information is readily available on our website. Further information is available on our website - >

   The applicant applied for a review of the delegate’s decision on 2 November 2018.

7. On 15 April 2021, the applicant’s representative submitted legal submissions and documentary evidence in support of the review application. The Tribunal was informed that after lodging an internet application and transferring payment of visa application fees to the Department, the applicant took a screen shot that shows 21 August 2018 as a transaction date and indicated that the amount of $1,535 was PAID. (A copy of the screen shot was attached to the applicant’s submissions).

8. The applicant appeared before the Tribunal on 15 April 2021 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. On 29 April 2021, the applicant’s newly appointed representative provided:

   ·Post-hearing legal submissions;

   ·A copy letter from ANZ bank dated 19 April 2021, confirming that a BPAY transaction of $1,535 was made on 21 August 2018;

   ·A copy screen shot of applicant’s IMMI account taken on 17 October 2018, as evidence that the transaction date was 21 August 2018, and indicating that the amount of $1,535 was paid; and

   ·A copy screen shot of applicant’s IMMI account taken on 21 April 2021, stating the transaction date to be 22 August 2018.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

    Does the applicant hold a specified qualification?

12. 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 13/013. In this case, the applicant holds a Master’s degree which is a qualification specified in that instrument.

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

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

14. 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.  

15. In this case, the applicant’s qualification was conferred or awarded by Swinburne University of Technology at Melbourne which is an educational institution specified in that instrument. Accordingly, cl 485.231(2) is met.

    Does the applicant meet the Australian study requirement?

16. Clause 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.

17. 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 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 of 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.

18. ‘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.

19. The issue in the present case is the timing of the applicant’s payment and when it was received by the Department, which led to the refusal of her application under the time of decision criteria in cl 485.231(3).

20. Section 45A of the Act prescribes that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge was paid, the application would be a valid visa application.

21. Section 46 of the Act relevantly prescribes that:

    (1)  Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

    (a)  it is for a visa of a class specified in the application; and

    (b)  it satisfies the criteria and requirements prescribed under this section; and

    (ba)  subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

    (c)  any fees payable in respect of it under the regulations have been paid; and

    …

22. Regulation 2.12JA relevantly prescribes:

    Reg 2.12JA    Payment of visa application charge for Internet application

    (1)  The visa application charge in relation to an Internet application must be paid by:

    (a)  credit card, in accordance with the instructions given to the applicant as part of making the Internet application; or

    (b)  funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application; or

    (c)  the PayPal system, in accordance with the instructions given to the applicant as part of making the Internet application.

    Note 1: A credit card surcharge is payable if an instalment, or part of an instalment, of visa application charge is paid by credit card: see regulation 5.41A.

    Note 2: A PayPal surcharge is payable if an instalment, or part of an instalment, of visa application charge is paid by the PayPal system: see regulation 5.41B.

    (2)  If the visa application charge is paid in accordance with paragraph (1)(a), the charge is taken not to have been received until the payment has been confirmed by the issuer of the credit card.

    (3)  If the visa application charge is paid in accordance with paragraph (1)(b), the charge is taken not to have been received until the payment is electronically matched to the applicant's Internet application form.

    (4)  If the visa application charge is paid in accordance with paragraph (1)(c), the charge is taken not to have been received until the payment has been confirmed by the operator of the PayPal system.

23. It is not in dispute that the applicant submitted the internet application and paid the visa application fee by BPAY fund transfer to the Department’s account. The Department acknowledged with its email of 19 October 2018 that the applicant commenced the payment process on 21 August 2018 at 10:04pm. The Department also informed the applicant that the payment was not received by the Department and matched to the applicant’s visa application until 22 August 2018 at 2:45pm.

24. In his post-hearing submissions, the applicant’s representative inter alia submitted that:

    While Reg 2.12JA states that a charge is not taken to have been received until it is electronically matched, we submit that Ms Vagdhan received no indication that it had not automatically been matched to her application.

    Cl.485.231 does not require an applicant to satisfy the Australian Study requirement within 6 months of payment being received but rather only refers to the 6-month period ending upon the visa application.

    That it is possible for an application to be made before the application payment has in fact been ‘received’ or processed by the Department.

    Given that her payment was given the status of ‘paid’ on 21 August 2018, as detailed in the screenshot taken on 17 October 2018, she had no reason to question any further whether the Department had received the payment on this date, as she relied on the Department’s own online system indicating that it had been received.

    In the alternative, the applicant’s representative submitted that in the present case, there are strong grounds warranting a referral to the Minister under s 351 of the Act and requested that the Tribunal refers the matter to the Minister because of the circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

25. The Tribunal does not accept the applicant’s representative’s submissions that the applicant received no indication that the payment of the application fee made by BPAY on 21 August 2018 had not automatically been matched to her application. That information was available at the Department’s website (at >

    The Tribunal accepts the applicant’s representative’s submissions that cl 485.231 does not require satisfying the Australian study requirement within 6 months of payment being received by the Department. However, pursuant to s 45A of the Act, the application is not validly made until the visa application charge has been paid. Further, the Federal Court decision in Mohammed v MIBP [2015] FCA 184, is the authority for the proposition that a visa application has not been ‘made’ unless all the requirements for a valid application have been satisfied.

26. The applicant’s representative has failed to elaborate as to how it is possible for an application to be made before the application payment has in fact been ‘received’ or processed by the Department. The Tribunal rejects this argument. 

27. Pursuant to reg 2.12JA(3) if the visa application charge is paid in accordance with paragraph (1)(b) (BPAY), the charge is taken not to have been received until the payment is electronically matched to the applicant’s internet application form.

28. Based on the completion letter from Swinburne University, the Tribunal finds that the applicant completed the requirements for the award of the Master of Practising Accounting course on 21 February 2018.

29. The Tribunal further finds that the payment of the application fee that commenced on 21 August 2018 at 10:04pm was not received by the Department and matched to the applicant’s visa application until 22 August 2018 at 2:45pm. Accordingly the Tribunal finds that the applicant lodged a Subclass 485 visa application on 22 August 2018.

30. Based on the evidence before it, the Tribunal finds that the applicant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately before the date of the visa application. Accordingly, cl 485.231(3) is not met.

31. Based on the above findings, the Tribunal finds that the applicant does not meet 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 in this case, the decision under review will be affirmed.

    Referral to the Minister

32. The Tribunal refers the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

33. The Tribunal is satisfied that this case exhibits unique or exceptional circumstances where the application of relevant legislation leads to unfair or unreasonable results in a particular case.

34. The Tribunal is of the view that it would be appropriate for the Minister to consider intervening in this matter on public interest grounds pursuant to s 351 of the Act. That is, of course, a matter entirely at the Minister’s discretion.

    DECISION

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

    Antonio Dronjic
    Member