Venkatesan v MIAC - [2008] FMCA 409

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VENKATESAN v MINISTER FOR IMMIGRATION
& ANOR

[2008] FMCA 409

MIGRATION – Migration Review Tribunal – application for order to show cause – does completion of diploma occur when academic units completed or when administrative transfer of credits is effected – no authority on point – consideration of what constitutes completion date for purposes of item 1128CA.

Migration Act 1958 (Cth)

Applicant:

JAIKUMAR VENKATESAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 990 of 2007

Judgment of:

Burchardt FM

Hearing date:

14 March 2008

Date of last submission:

14 March 2008

Delivered at:

Melbourne

Delivered on:

10 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitor for the Applicant:

Wimal & Associates

Counsel for the First Respondent:

Ms E. Latif

Solicitor for the First Respondent:

Clayton Utz

THE COURT ORDERS:

THAT the application filed 20 July 2007 be dismissed.
THAT the Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 990 OF 2007

JAIKUMAR VENKATESAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This case involves what both parties agree is a short point.
Mr Venkatesan has sought an order to show cause against the Respondents as to why remedy should not be granted to him in respect of the decision of the Migration Review Tribunal (“the Tribunal”) dated 20 June 2007. That decision affirmed the decision of a delegate of the First Respondent to the effect that Mr Venkatesan did not meet the criteria for the grant of a Skilled-Independent (Residence) (class DD) visa.
Counsel for Mr Venkatesan expressly abandoned particulars 3 and 4 of the only ground set out in his client's application. He also conceded that particulars 1 and 2 are essentially to the same effect.
What the case all boils down to is the way in which the Tribunal dealt, pursuant to item 1128CA(3)(1)(i) of Schedule 1 to the Migration Act 1958 (Cth) (“the Act”), with the issue of when it was that

Mr Venkatesan finished his diploma at RMIT. The Tribunal found

(CB 208) that the Applicant completed the academic requirements for the award of graduate diploma when his last result was entered into the student record on 2 August 2005.
This was admittedly outside the six-month period prior to the date of his application on 13 February 2006. It is common cause that the application, to be valid, had to be made within six months of the completion of the diploma.
The Tribunal also found that the information provided to the department to meet the requirements of item 1128CA was misleading, and in a particular material, because the material provided suggested that Mr Venkatesan had completed his academic requirements for the award of his graduate diploma inside the relevant six-month period. It should be noted that the Tribunal expressly found that this was not done knowingly either by Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 409
Decision Date: 10 April 2008

CaseChat Overview and Summary

The case of Venkatesan v Minister for Immigration & Anor before the Federal Magistrates Court of Australia revolves around a dispute regarding the completion date of a diploma for visa application purposes. The applicant, Jaikumar Venkatesan, sought to challenge the decision of the Migration Review Tribunal affirming a delegate's decision that he did not meet the criteria for a Skilled-Independent (Residence) (class DD) visa due to the timing of his diploma completion. The central issue was whether the diploma was completed when the academic units were completed or when the administrative transfer of credits was effected.

The legal issue before the court was to determine the precise meaning of "completion" in the context of item 1128CA(3)(1)(i) of the Migration Act 1958 (Cth), specifically in relation to when Mr Venkatesan's diploma was considered complete. The court needed to decide whether completion meant meeting the academic requirements or if it also included the administrative transfer of credits. Both parties acknowledged the absence of direct authority on this point and argued that the issue should be resolved based on commonsense.

Federal Magistrate Burchardt held that the completion of a diploma for the purposes of item 1128CA refers to the point when the academic requirements are met. The court reasoned that once the necessary academic results or credits are achieved, there is nothing further that requires academic effort or evaluation. The administrative transfer of credits is a separate process that does not affect the academic completion date. The Tribunal's finding that Mr Venkatesan had completed his diploma on 2 August 2005 was upheld, and thus his application was dismissed.

The court ordered that the application be dismissed and that the applicant pay the first respondent's costs in the sum of $5,000.00.

Orders