FEDERAL COURT OF AUSTRALIA

Sapkota v Minister for Immigration and Citizenship [2012] FCA 981

THE COURT ORDERS THAT:

1.    The Appellant’s Application for an Extension of Time be allowed.

2.    The Appellant’s appeal be dismissed.

3.    The Appellant pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant seeks an extension of time in which to appeal from a decision of the Federal Magistrates Court (Sapkota v Minister for Immigration & Anor [2012] FMCA 137) which was issued on 1 March 2012, and to appeal such decision. The Federal Magistrates Court dismissed the appellant’s application for judicial review of a decision made by the Migration Review Tribunal (‘the Tribunal’) on 14 June 2011. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) dated 30 June 2010 not to grant the appellant a Skilled (Provisional) (Class VC) visa.

2    As will become apparent, the Court will grant the necessary extension of time and will consider the merits of the appeal.

3    The appellant is a citizen of Nepal who arrived in Australia in August 2006. On 1 May 2009 the appellant applied for a Class VC visa. Regulation 485.213(a) of the Migration Regulations 1994 (Cth) (‘the Regulations’) states that to be entitled to such a visa, inter alia, the following requirement must be met:

(a)    the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made;

4    ‘Australian study requirement’ is defined by reg 1.15F of the Regulations as:

Australian study requirement

(1)    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:

(a)     that are registered courses; and

(b)     that were completed in a total of at least 16 calendar months; and

(c)    that were completed as a result of a total of at least 2 academic years study; and

(d)     for which all instruction was conducted in English; and

(e)    that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

Note Academic year is defined in regulation 1.03.

(2)    In this regulation:

"completed, in relation to a degree, diploma or trade qualification," means having met the academic requirements for its award.

Note The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

5    The appellant completed a Certificate IV and a Diploma at Holmes College between August 2006 and October 2008. The appellant provided with his application a letter from Holmes College, dated 28 June 2010, which stated that the appellant completed the course on 26 September 2008. Accordingly the Minister determined that to satisfy the requirements of reg 485.213(a) the application would have had to have been filed by the end of March 2009. As the application was only made on 1 May 2009, the Minister determined that he was not satisfied that the application met the requirements of reg 485.213. Consequently the appellant’s application was rejected.

APPLICATION TO THE TRIBUNAL

6    At the Tribunal, the appellant stated that during his period in Australia he became very ill and spent a month recovering. Furthermore, the appellant stated that he only became aware that the results of his studies were available on 21 October 2008 and that he only received notification that he had passed the course in the first week of November 2008.

7    The Tribunal found that even if the appellant was taken as having completed the course in October 2008, the appellant’s application would still have been filed out of time. The Tribunal followed the decision of Venkatesan v Minister for Immigration (2008) 216 FLR 356 (‘Venkatesan’). In Venkatesan a Tribunal found that the applicant had completed the academic requirements for his graduate diploma when his last result was entered into the student record.

8    In the appellant’s decision, the Tribunal stated at [25]:

The applicant argues that he was not notified of the course completion until the first week of November [2008]. The Tribunal is prepared to accept that evidence. However, in the Tribunal’s view, the relevant date, for the purpose of cl 485.213(a) is not when an applicant is notified of having completed the course, but when the applicant completes the course. The term ‘completed’ is defined as having met the academic requirements for the award of the qualification. It is not the date when the applicant was informed by the education provider that he met the academic requirements, but the date when he met the academic requirements, whether or not this information was communicated to the student. This may be the date when the results of the final examinations and assessments become available. This is consistent with the reasoning in Venkatesan which the Tribunal finds persuasive.

9    The Tribunal adopted the decision of Sakhno v Minister for Immigration & Anor [2007] FMCA 1492, which states that the Tribunal must not follow Departmental policy as outlined in a document known as ‘PAM-3’ if it is inconsistent with the Regulations. Further the Tribunal referred to Pasula v Minister for Immigration & Anor [2010] FMCA 219 at [22]-[23] and found that it was under no obligation to have regard to PAM-3 as a condition to its jurisdiction.

10    PAM-3 at sch 2, para 487.3, subpara 3.7 relevantly states:

3.7 When must the study have been undertaken

The critical date is the date on which the results of the applicant's final exams or notice of completion of the course were available or published. This could include:

•     letter to the student regarding their final exam results

•     notification on the internet

•     notification in the newspaper

•     notification on the university bulletin board.

11    Instead of applying the policy as stated in PAM-3, the Tribunal decided at [26] that the date at which a course is considered to be completed (i.e. the date upon which the six month application period commences) is the date when the appellant met the academic requirements, whether or not the information was communicated to him. The Tribunal stated at [28] that it preferred its interpretation to the provision in PAM-3 because it gave greater certainty in determining the date of completion of the course. The Tribunal therefore affirmed the decision of the Minister.

APPLICATION TO THE FEDERAL MAGISTRATES COURT

12    The appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision. The appellant argued that cl 485.213(b) had the effect of causing a determination of the question of whether an applicant had satisfied the study requirements to be postponed until the degree or qualification was actually awarded.

13    Cameron FM rejected this argument, stating that cl 485.213(b) is directed towards determining the relevance between an applicant’s stated skilled profession and the course or courses of education undertaken.

14    His Honour also adopted the decision in Venkatesan. His Honour stated at [24]:

There is no room for uncertainty in the definition of ‘completed’; it means what it says. As defined, a course is completed when its academic requirements have been satisfied.

15    The appellant also argued that to hold that the six month period commences prior to an applicant receiving notification would reduce the amount of time available to make a visa application in circumstances where an applicant wishes to appeal the results awarded to the applicant by the education institution.

16    In response to this argument, Cameron FM stated at [27]:

No unfairness or absurdity is produced by a requirement that a subclass 485 visa application be lodged within six months of the completion of the relevant course of study. That period would normally be sufficient to accommodate receipt of results and any academic appeals. However, even if in the occasional case it was not, it was not suggested that the Minister’s department was so inflexible that, a visa application having been lodged, it would not await confirmation of completion or the outcome of an academic appeal process conscientiously pursued by an applicant before making a decision on the application.

17    Accordingly, his Honour affirmed the Tribunal’s decision.

APPLICATION TO THE FEDERAL COURT

18    On 30 March 2012 the appellant filed an application for an extension of time to file an appeal against the decision of Cameron FM. In an affidavit dated 30 March 2012, the appellant’s solicitor avers that he was unable to give attention to the appellant’s appeal as he sustained a sudden illness. The Court must therefore consider whether there is sufficient merit in the appellant’s application for leave to be granted.

19    In written submissions, the appellant submits that the date of completion of a course should not be taken as the last day of class, or the last day of exams, but instead should be taken as the day upon which the applicant receives notification from the educational institution that all necessary course requirements have been satisfied. The appellant states that this is in fact the information which is stated on the departmental website. Furthermore, the appellant relies upon a decision of Denning MR in R v Immigration Officer ex parte Kharrazi [1980] 1 WLR 1396 (‘Kharrazi’) and a decision of the Administrative Appeals Tribunal: Tribunal Case 10 (1986) 18 ATR 3050.

20    Neither decision assists the appellant. Tribunal Case 10 is concerned with the definition of ‘prescribed course of education’, which is not relevant to the present matter. Kharrazi considers whether for the purposes of UK immigration law the phrase ‘a full time course of study’ was restricted to the time period in which the applicant was expected to complete his secondary education, or whether it also included the period after secondary education, when the applicant expected to continue on to study at a British university. Again, this is not relevant to this case.

21    The applicant argued that his course was not completed until a later date when the university approved credit transfers for four subjects which he had already completed.

22    At [15]-[17] of the decision in Venkatesan Burchardt FM stated:

[15] 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.

[16] 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.

[17] 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.

23    The Court considers that the definition of completion in reg 1.15F of the Regulations does not extend the date of completion to the date of the formal conferral of the degree at a graduation ceremony. A period of time elapses after the final grades for the course are awarded and the graduation ceremony when a number of administrative steps (e.g. finalising transcripts, testamurs, assigning students to graduation ceremonies which are only held periodically) are taken by the university without any academic effort on the part of the applicant. It seems that the date of completion would not extend to this period either.

24    However, the date at which one is taken to have ‘achieved the necessary results’ is also not the date of submission of the final piece of assessment. 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 second part is essential. A student has no legal right to the award of a qualification unless a university decides for itself that the requisite requirements have been satisfied: see Griffith University v Tang (2005) 221 CLR 99 at [96].

25    In the timeline between a student completing the final piece of assessment of a course of study and the education institution conferring the relevant award, there comes a point when the education institution satisfies itself that the requirements have been met. That point is reached where the result of assessment for the final course or item of assessment which the student is required to complete as part of the course of study has been made publicly available, assuming that the result of the final piece of assessment meets the institution’s requirements for progression through the course. The publication of such result is in effect a statement from the institution that the student has completed all of the necessary components for the degree to be awarded. Accordingly the Court reaches the same conclusion as Burchardt FM in Venkatesan at [17].

26    Given that a decision as to whether a student has satisfied the requirements of a course is entirely a matter for the education institution, 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 of the student’s results is not relevant for determining the date when a student has completed the academic requirements. The relevant date is the date 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. After this date a student would be able to contact the education institution to find out whether they had satisfied the necessary requirements. Although the question of academic appeals would affect the point at which results are finalised, the issue does not arise in this case.

27    In these proceedings, a letter from Holmes Institute states that the appellant completed the course on 28 September 2008. This letter clearly shows that this was the date at which the university determined that it was satisfied that the appellant had completed the course requirements. This is the date upon which the six calendar month period for filing a visa application commences. Accordingly, the appellant’s application was filed out of time. The Court therefore agrees with the approach of Cameron FM and finds no error in the learned Federal Magistrate’s decision.

28    Accordingly, the Court will grant leave for the appellant to appeal the decision of Cameron FM, but will dismiss the appeal.

Associate:

Dated:    7 September 2012