Venkatesan v MIAC
[2008] FMCA 409
•10 April 2008
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 Venkatesan or the University.
Mr Venkatesan contended that he did not complete the academic requirements for his course until the University granted him credit transfers for four subjects on 13 September 2005. It was submitted that he was thus inside the six-month period and accordingly the Tribunal fell into error in its decision.
Mr Gibson for the Applicant submitted that the word "completed" meant "to meet the requirements set". He submitted that to complete the requirements for an award can only be said to mean circumstances where an Applicant has an eligibility or entitlement to a degree.
He submitted that the transfer of the four subjects was necessary in the sense that without the approval the University gave, the Applicant was not able to complete his diploma because it could not be awarded.
The Respondent’s counsel submitted that this represented a gloss on the word "completed". The First Respondent pointed to the fact that for the purposes of item 1128CA:
Completed
in relation to a degree, diploma or trade qualification, means having met, the academic requirements for its award.
She also referred to CB 131 which was a document from RMIT inconsistent with CB 181, being its later correspondence.
The Respondent pointed to the distinction between academic and administrative requirements of the award referred to in the legislation.
The Respondent submitted that credit transfer clearly occurred by 2 August 2006 and the Tribunal's findings to this effect are made out.
Both parties agreed that there was no authority directly on point and submitted that this was plainly a matter of commonsense.
In my view, 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.
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 August 2006.
To adopt what I hope is a commonsense approach, there was nothing more for the Applicant to do of an academic nature after 2 August 2006. What was required, admittedly, were certain steps, but they were purely administrative steps that did not require any form of academic effort by Mr Venkatesan nor any evaluation of any such effort by the university.
In these circumstances, in my opinion the Tribunal did not fall into error in its approach to this issue and the application must be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 10 April 2008
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