Federal Court of Australia

Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 19 October 2020 be set aside and in lieu thereof it be ordered that:

(a)    the application be allowed;

(b)    the second respondent’s decision dated 5 July 2019 be set aside;

(c)    the application for review dated 27 March 2018 be remitted to the second respondent for hearing and determination according to law; and

(d)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The appellant, Mr Ali, appeals from a judgment of the Federal Circuit Court of Australia, dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister, to refuse Mr Ali’s Temporary (Graduate) subclass 485 visa under s 65 of the Migration Act 1958 (Cth) and cl 485.231 of the Migration Regulations 1994 (Cth). The appeal raises the question of when a university degree is ‘completed’ for the purposes of the statutory scheme. That timing is significant because an application for a visa is permitted only where completion has occurred within a certain period before the application was made.

2    Mr Ali contends that as a matter of construction and authority, completion should arise when:

(a)    an applicant has completed enough study and course work to be eligible for the award of the degree; and

(b)    the applicant’s completed study and course work has been authoritatively assessed as satisfactory.

3    The Minister contends that completion does not arise until the step of ‘ratification’ by the university has occurred. For reasons which follow, at least in the circumstances of this case, I consider that Mr Ali’s argument is correct.

STATUTORY PROVISIONS

4    The exercise of the power to refuse or grant a visa under s 65 of the Migration Act requires the Minister to relevantly be satisfied that ‘the other criteria for [the visa] prescribed by [the Migration Act] or the [Migration Regulations] have been satisfied’: s 65(1)(a)(ii). The particular subclass of 485 visa that Mr Ali applied for allows non-citizens to work in Australia upon completion of a relevant Australian qualification. It is at times referred to as the ‘Post-Study Work stream’. The criteria in issue in this case are set out at cl 485.231 of Sch 2 of the Migration Regulations as follows:

485.231

(1)    The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

(2)    Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.

(3)    The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

(Emphasis added.)

5    The issue in this case is whether Mr Ali has satisfied the ‘Australian study requirement’ in the period of six months immediately before the day his application was made. The phrase ‘Australian study requirement’ is defined in reg 1.15Fof the Migration Regulations: see note 1 to cl 485.111 of Sch 2. Regulation 1.15F provides as follows:

1.15F    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.

…

(Emphasis added and in the original.)

BACKGROUND EVENTS

6    In February 2015, Mr Ali enrolled in a Master’s of Engineering degree at Edith Cowan University in Western Australia. On 22 February 2018, he undertook and completed, his supplementary examination for his final unit in the degree and was informed by his lecturer on the same day that he had passed that exam. At some point in the very early minutes of 27 February 2018 (just after 11.59 pm on 26 February 2018), Mr Ali’s pass mark in the exam was published, following which, at 1.09 am, Mr Ali applied for the 485 visa. On the following day, 28 February 2018, his current visa was due to expire.

7    For the sake of clarity, and having regard to the prevailing use of certain terms by the parties and the University, in these reasons references to a ‘course’ or a ‘course of study’ refers to the tertiary qualification or degree as a whole. In this case, that is the Master’s of Engineering. I will then refer to the individual subjects that constitute the course, and which must be completed to attain the course/degree, as ‘units’ or ‘units of study’.

8    Subsequently, on 5 March 2018, the University’s Board of Examiners ratified Mr Ali’s course completion, being completion of the Master’s degree as a whole. On 23 March 2018, however, the delegate decided to refuse Mr Ali’s 485 visa application. On 27 March 2018, Mr Ali applied to the Tribunal for review of the delegate’s decision. On 5 July 2019, the Tribunal conducted a hearing into the matter and on the same day decided to affirm the delegate’s decision.

9    On 29 July 2019, Mr Ali applied for judicial review of the Tribunal’s decision. That application was heard on 19 October 2020, on which date the primary judge dismissed the application with ex tempore reasons, subsequently reported as Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3126. In November 2020, Mr Ali appealed from the primary judge’s decision.

THE ISSUE

10    As can be seen, cl 485.231(3), in prescribing criteria for the Post-Study Work stream of the 485 visa, provides that the applicant must satisfy the Australian study requirement in the period of six months ending immediately before the day the application was made. The expression ‘immediately before’ has the effect that the Australian study requirement must be satisfied, at the latest, on the day before the application for the visa is made. It cannot be satisfied on the same day that the application is made: Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2206 per Kendall J (at [51]).

11    In this case, the relevant question is whether Mr Ali had ‘completed’ his course of study, at the very latest, on the day immediately before the day on which he applied for the 485 visa. Mr Ali applied for the 485 visa on 27 February 2018 (just after 1.00 am in the morning). To satisfy the relevant part of the Australian study requirement, he must demonstrate that he had completed his course of study prior to midnight on 26 February 2018.

12    Mr Ali has two hurdles to overcome. He must first demonstrate that he met all the academic requirements for his course/degree (thereby completing it) when he achieved the pass grade in the final exam of his final unit of study. Secondly, even though his pass grade for his final unit was published (and notified to him) in the early minutes of 27 February 2018, Mr Ali must demonstrate, at least for the purpose of this appeal, that there is a realistic possibility that completion had already occurred prior to publication of the grade, either on 26 February 2018 or some other earlier date, such that any error as to 5 March 2018 being the completion date was material.

13    The Minister resists the appeal on both points. It is contended that the proper date of completion was 5 March 2018, when the Board of Examiners ratified Mr Ali’s course completion. In the alternative however, it is contended that even if completion did occur upon Mr Ali passing his final unit, the Minister contends the relevant event which triggered completion was the publishing of Mr Ali’s grade on the website in the early minutes of 27 February 2018. Thus, the appeal would still fail because Mr Ali would have completed the course/degree on the same day that he applied for the 485 visa and not, as required by the statutory scheme, on the day immediately before he applied for the visa.

IN THE TRIBUNAL

14    The Tribunal relied for its decision on three letters provided by the University and a copy of Mr Ali’s transcript of results. Each of those documents lists the date of ‘course completion’ as 5 March 2018, being the date of ratification by the University’s Board of Examiners. The Tribunal appears to have considered the University’s view as to the date of completion as dispositive of the issue as follows (at [13] and [17]-[19]):

13.    The Tribunal noted that the issue on review is whether he completed a degree, diploma or trade qualification in the period of 6 months ending immediately before he applied for the visa on 27 February 2018. However the evidence he has provided from [the University] confirmed that he completed his qualification on 5 March 2018, after he applied for the visa.

…

17.    The Tribunal explained to [Mr Ali] at the hearing that it has no discretion in relation to time of application criteria and that as [the University] had clearly and consistently confirmed that the date he completed his Master of Engineering was 5 March [2018] that it was of the view that he could not satisy [sic] cl.485.231(3).

18.    On this basis the Tribunal finds that [Mr Ali] does not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application date and therefore does not meet cl.485.231(3).

19.    In making this finding the Tribunal has considered all of the evidence before it including how [Mr Ali] did not understand the requirements, applied without migration advice and did so in a rush because his student visa was expiring and he did not want to be [sic] become “illegal”[.] While the Tribunal has some sympathy for [Mr Ali’s] situation, it is unable to find in his favour on the basis of these circumstances. The Tribunal explained this to [Mr Ali] at the hearing. The Tribunal notes the representative’s submission in relation to the authority of ‘Anand’ however the issue in this case is not interpretation of the words “accompanied by” but rather a time of application criterion.

(Emphasis added.)

15    Although the Tribunal indicated that it had considered all of the evidence before it, it did not extract any parts of the University documents in its reasons. On 28 February 2018, Mr Ali requested a letter from the University to support his visa application commenced the day prior. That letter relevantly provides as follows:

…

Mr Ali currently has an academic progression status of good standing and requires a total of 0 credit points in order to complete the above course. Mr Ali has now successfully completed supplementary exam for his final unit in the week commencing the 19th of February, 2018.

Subject to the Board of Examiners ratifying his course completion, it is expected that Mr Ali will complete this course in March, 2018.

…

(Emphasis added.)

16    A further letter dated 10 April 2018 from the University set out a timeline of Mr Ali’ s relevant progressions for the purpose of his review. The letter relevantly provides as follows:

…

This letter acts to provide a timeline surrounding [Mr Ali’s] completion of the above course:

22/02/2018 Mr Ali completed a supplementary exam for his final unit: ENS5240 Industrial Control

27/02/2018 result for ENS5240 Industrial Control published as ‘PS - Pass Supplementary’

05/03/2018 Board of Examiners ratified Mr Ali’s course completion

Despite Mr Ali completing his final unit successfully on the 27th of February 2018, all students’ course completion requires ratification from the Board of Examiners, which involves a process that is not instantaneous. Accordingly, Mr Ali officially completed his course on the 5th of March 2018

…

(Emphasis added.)

17    The Tribunal treated the view of the University as being determinative of whether or not Mr Ali had completed his degree within the meaning of the Migration Regulations. The Tribunal accordingly found that Mr Ali completed his Master’s of Engineering on 5 March 2018, which was not within the period of six months immediately before the application was made on 27 February 2018. It affirmed the delegate’s decision on the basis that Mr Ali did not meet the criteria in cl 485.231(3) of the Migration Regulations.

IN THE FEDERAL CIRCUIT COURT

18    The primary judge agreed with the Tribunal that the date nominated by the University of 5 March 2018 was dispositive. His Honour also said that even if another date were applicable, the only other possible date was when Mr Ali’s final unit results were published on 27 February 2018. Neither date was sufficient for the purposes of cl 485.231(3), according to the primary judge, as the latest date by which Mr Ali could complete his course, consistent with the provision, was 26 February 2018.

19    The primary judge referred to, and relevantly extracted (at [10]) the University letter dated 10 April 2018. His Honour also referred (at [3]) to the letter dated 28 February 2018, but did not specifically refer to its contents, particularly, no mention was made of the statement that Mr Ali ‘requires a total of 0 credit points in order to complete the above course [Master’s of Engineering]’.

20    At [15]-[23] of the primary judgment, his Honour considered the three main authorities on this issue. I address them in the next section of these reasons. In summarising the principles from these authorities, the primary judge said the following (at [22]-[23]):

22    In Llanos & Anor v Minister for Immigration & Anor [2018] FCCA 2148, I had a similar situation present itself before me. The Applicant had completed his final assessment but the faculty board had not yet met. The faculty board later met and ratified the results. That was some days after those final results had been submitted. I found, in that case, that the degree was completed on the day that the faculty board met and ratified the results; and I said that it is clear that the course is not completed until the education provider says that it is completed.

23    That statement is totally consistent with what Judge Burchardt and [Cowdroy] J have said in the respective matters. This is because, as Cowdroy J said in Sapkota (Supra), that the final piece of assessment has to meet the institution’s requirements for progression through the course.

(Emphasis added.)

21    As to ratification on 5 March 2018, the primary judge held that the University’s requirements for progression through the course were spelled out in the letter that the University sent to Mr Ali on 10 April 2018 (at [24]-[25]):

24    …which, again I repeat myself, said despite Mr Ali completing his final unit successfully on 27 February 2018, all students’ course completion requires ratification from the [Board of Examiners], which involves a process that is not instantaneous and accordingly, Mr Ali officially completed his course on 5 March 2018. That is then consistent with what Cowdroy J said in Sapkota when he said 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.

25    Clearly, on what the evidence is, that date is 5 March 2018. For that reason, I cannot find that there has been any jurisdictional error illustrated by the Tribunal.

(Emphasis added.)

22    In relation to the alternative argument that, assuming completion did occur prior to ratification, Mr Ali was still too early because he applied for the visa on the same day that his final unit grade was published, the primary judge said (at [26]-[27]):

26.    But even if I were satisfied that the date of completion should not be 5 March 2018, [Mr Ali] submits that there is a factual question as to whether it was 27 February 2018. In Mahohoma (Supra), Judge Kendall confirmed that the six months immediately before the day on which the application was made, does not include the day on which the application was made. As the application was made at 1.09 am on 27 February 2018, [Mr Ali] would have had to complete his degree on or before 26 February 2018 for the application to have been valid.

27.    The evidence here from [the University] is that the result for ENS5240, published as “PS – Pass Supplementary” was on 27 February 2018. That means that, if it were that I found that that was the date upon which the point had been reached where the result of assessment for the final course had been made publicly available and therefore that was, in effect, a statement from the institution that the student had completed all of the necessary components, [Mr Ali] submits to me that there is the possibility that, because that result was published sometime between 12.01 am and 1.09 am on 27 February 2018, the [University] had come to that point of satisfaction on the 26th, given the time of day. And if it was on the 26th, then the matter is within the timeframe.

23    However, the primary judge held that it could not be objectively determined that the relevant publication took place on or before 26 February 2018. His Honour said (at [29]-[30]):

29    I do not accept this submission because the authorities are very clear that the point of satisfaction by the institution must be an objective one; whether that be the publication of the results; whether that be the board ratifying the matter or whether that be some other event that is able to be objectively viewed. The submission of [Mr Ali] is that if the matter is to be referred back to the Tribunal, the Tribunal should be asked to engage in some form of speculation and to possibly arrive at a conclusion that has no objective verification.

30    For that reason, even if I were in error as to the date of completion being 5 March, the error would not be a jurisdictional one because the earliest date at which the Australian course of study could have been completed was 27 February 2018 and that was not within the six month period prior to the application being made.

(Emphasis added.)

24    After expressing his sympathy for Mr Ali’s predicament and noting with regret that the ‘letter of the law’ has produced ‘this terrible result’, the primary judge dismissed the application for review.

GROUNDS OF APPEAL

25    Mr Ali appeals on the following grounds which quite fully advance the argument:

1.    The primary judge erred by failing to conclude that the Tribunal had made a jurisdictional error by misinterpreting or misapplying the applicable provisions of the Migration Act 1958 (Cth) (Act) and the [Migration Regulations] 1994 (Cth).

a.    Section 65(1)(a)(ii) of the Act had required the Tribunal to be satisfied that the criteria for the Skilled Provisional (Class VC) visa (visa) had been met;

b.    In relation to the visa, for Subclass485 (Temporary Graduate) in the Poststudy Workstream, cl 485.231(3)in Sch2 to the [Migration] Regulations had provided “the applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made”;

c.    The day the application had been made was 27 February 2018, with the result that the period of months ending immediately before that day within the meaning of cl 485.231(3) had expired on 26 February2018: Mahohoma v Minister for Immigration [2020] FCCA 2206 at [51];

d.    d. [sic] In Sapkota v Minister for Immigration and Citizenship [2012] FCA 981 at [22]-[24], Cowdroy J approved of the reasoning of Venkatesan v Minister for Immigration [2008] FMCA 409; 216 FLR 356 at [17] where Burchardt FM said “To adopt what I hope is a common sense 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”;

e.    In Sapkota, Cowdroy J referred to the date of publication of results as only one possible date where assessment as satisfactory could be found. His Honour considered that an earlier date might also be possible on the evidence. Consistently with Sapkota and Vankatesan [sic], ratification by a university body of a result already allocated or announced, at least in the absence of evidence that the body had revisited the marks of an individual candidate, would not of itself displace the date of allocation or announcement of the result as the critical date for cl 485.231(3);

f.    f. [sic] By parity of reasoning with Sapkota and Venkatesan, it is possible that [Mr Ali] had completed his degree by 26 February 2018, as there was no more study for him to do by that date nor any evaluation of that study by [the University], due to evidence that [Mr Ali] had completed his last assessment on 22 February 2018 and been told he had passed the assessment. Further, there was evidence that the results had been published after midnight on 26 February 2018, with the result that [Mr Ali’s] efforts must or could well have been adjudged satisfactory no later than 26 February 2018;

g.    The Tribunal had misinterpreted or misapplied the statutory scheme as at paragraph 17 of its decision the Tribunal found the date of 5 March 2018 nominated by [’the University] to be dispositive and did not find whether [Mr Ali] had completed his degree, in accordance with Venkatesan and Sapkota, on or before 26 February2018;

h.    The primary judge erred by upholding the Tribunal’s reliance on the date nominated by [’the University] as dispositive; further erred by failing to conclude that the Tribunal had not asked itself the question posed by the statutory scheme properly understood, namely which was the date on which [Mr Ali’s] study was adjudged satisfactory; and finally erred by failing to conclude that there was a realistic possibility on the material before the Tribunal of the relevant date being 26 February 2018;

i.    To the extent that the primary judge had already held otherwise in Llanos v Minister for Immigration [2018] FCCA 2148, his Honour was, with respect, incorrect. It cannot be the case, as held by his Honour in that case, and relied upon by the Minister in the present case, that (at [21]) “the course is not completed until the education provider says that it is completed”;

j.    The matter should be remitted to the Tribunal to make a finding of fact as to whether [Mr Ali’s]’ last assessment was adjudged to be satisfactory on or before 26 February 2018, in which event cl 485.231(3) of Sch 2 to the [Migration] Regulations would be satisfied.

CASE LAW

26    The parties both referred to three decisions which have dealt with the concept of ‘completion’ in the context of cl 485.231(3) and the Australian study requirement as defined in reg 1.15F. These cases are:

(a)    Venkatesan v Minister for Immigration [2008] FMCA 409; (2008) 216 FLR 356;

(b)    Sapkota v Minister for Immigration and Citizenship [2012] FCA 981; and

(c)    Llanos v Minister for Immigration and Border Protection [2018] FCCA 2148.

27    When applying these authorities in the present case, it must be borne in mind that both Venkatesan and Sapkota concerned visa applicants who were too late in applying for their 485 visas. The arguments thus put in those cases were that the date of completion was in fact later than the dates stated by the education providers in those cases (so as to bring their application dates within the six month window required by cl 485.231(3)(a)). Only Llanos concerned the present situation, where the visa applicant is considered to have made the application prior to completion, and thus too early to fall within the six month window. It should also be observed that only in Llanos is the process of ratification of a course of study referred to, or considered expressly, as the date of course completion for the purpose of the Australian study requirement. In Venkatesan, Burchardt FM refers to evidence of the applicant’s ‘last result’ being ‘entered into the student record’, while in Sapkota, Cowdroy J simply referred, without elaboration, to a letter provided by the education provider (not a university) that specified the completion date.

28    In Venkatesan, the Court considered materially identical statutory provisions. The applicant was required to have completed his qualification in the six months immediately before he applied for the visa. The application was made on 13 February 2006, with the result that the applicant was required to have completed his qualification between 12 August 2005 and 12 February 2006. The last result for that applicant had been entered on his student record on 2 August 2005. However, the applicant had achieved his qualification partly due to credit transfers from previous studies. The credit transfers had not been formally recorded until 13 September 2005. The applicant argued that the latter was the date of completion of the qualification. The Court rejected the argument, stating (at [15]-[17]) that:

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.

(Emphasis added.)

29    Again, in Sapkota materially identical statutory provisions were considered. In that case, the appellant had applied for the visa on 1 May 2009 and, therefore, was required to have completed the qualification between 31 October 2008 and 30 April 2009. The final results first became available on 21 October 2008 and the appellant received a notification of course completion in November 2008. There was evidence that the University had satisfied itself that the appellant had completed the course on 26 September 2008. Ultimately, Cowdroy J held that the appellant had completed his course before 31 October 2008, referring to Venkatesan with approval and reasoning that there were two necessary elements to the achievement of academic results (at [23]-[24]):

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].

(Emphasis added.)

30    His Honour continued (at [25]-[26]):

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.

(Emphasis added.)

31    In the result, Cowdroy J could see no reason, based on the ‘commonsense approach’ set down in Venkatesan, that the completion date could be considered to be any date later than that put forward by the education provider (at [27]).

32    Llanos also concerned the same statutory provisions arising in this case. In that case, the applicant applied for the visa on 30 June 2016. He had completed his study for the qualification and his efforts had been assessed as satisfactory by 27 June 2016. However, the results were not released by the university until 6 July 2016. That followed a meeting of the faculty academic board to ratify the results on 4 July 2016. The primary judge was also the judge considering the case in Llanos. His Honour observed (at [10]-[11]):

10.    So that notwithstanding the fact that, as far as [the university] is concerned, the degree was conferred on 6 July 2016, such a stance is inconsistent with the observations of my brother, Burchardt J, in Venkatesan v Minister for Immigration & Anor [2008] FMCA 409 and also the observations of Cowdroy J in Sapkota v Minister for Immigration and Citizenship [2012] FCA 981. The way in which the Court should interpret the timing of the degree is that the degree was completed on 4 July 2016.

11.    That completion of the degree, on 4 July 2016, occurred four days after the Applicant applied for his visa. That is, the Applicant applied for the visa on 30 June 2016. According to the way in which the clause is composed, the degree had to be completed some time between 1 January 2016 and 30 June 2016 for the application to be valid. As the course was completed on 4 July 2016, it was not completed within that six month period, and so was outside of the time.

33    In Llanos the court was also concerned with a separate deficiency in the applicant’s purported satisfaction of the Australian study requirement concerning the number of weeks over which the qualification had to be completed.

MR ALI’S CONTENTIONS

34    As can be quite clearly seen from the grounds of appeal, Mr Ali’s central contention is that assessment for the purpose of the statutory scheme should refer to assessment by an applicant’s immediate academic supervisor, unless that assessment has subsequently been displaced elsewhere in the university. The date and time of written publication of the applicant’s results is evidence that, immediately before publication at the latest, the applicant’s results had been assessed as satisfactory.

35    If that is the proper test, Mr Ali contends the Tribunal and the primary judge erred as neither correctly identified the statutory criterion.

ARGUMENTS FOR THE MINISTER

36    The Minister contends that the completion date was 5 March 2018 because it was on that date that the University assessed Mr Ali as having satisfied the academic requirements for his degree.

37    The Minister contends that the Federal Circuit Court’s reasoning in Llanos was an orthodox application of existing authorities. The Minister argues that Mr Ali’s submission that assessment by an applicant’s immediate academic supervisor is sufficient, unless there is evidence that it has been displaced later in university procedures is not established either on the evidence or as a matter of principle. The Minister says that this submission reasons from the flawed premise that, by force of reg 1.15F, it is the Minister, or the Tribunal on review, who may determine the appropriate assessment of whether the academic requirements of a course have been met. The Minister says the only assessment which is permitted is whether the education provider has determined that the academic requirements have been met.

CONSIDERATION

38    The appeal grounds have been set out in full as they neatly encapsulate the argument advanced for Mr Ali, but it is possible to expand a little on that argument.

39    It is important to understand that the essence of Mr Ali’s case is that the date of completion is not what the university considers it should be. Rather, it is what Parliament says it is. This is the central point on which I agree and, in respect of which, the appeal should be upheld. It is entirely appropriate for the university to be of the view for its purposes that completion does not take place until there has been ratification by a board of examiners, although there was no evidence as to what that ratification involved. Whatever the university’s entirely justifiable view might be as to the formal date of completion, it is the statute and the regulations which are to prevail for the purposes of this case in prescribing the point in an applicant’s progression through their studies, and the university’s assessment of that progress, at which completion occurs. Completion, for the purposes of reg 1.15F, is expressly directed to the satisfaction of the academic requirements of a course.

40    The Minister argues that the basis upon which a person will have satisfied the academic requirements for a relevant award is determinable by the education provider and no one else, citing Sapkota. As a consequence, the Tribunal was not in a position to reach its own view, independently of the education provider as to whether and when those requirements have been met. The relevant date, the Minister says, is the date when the educational institution decides the academic requirements have been met, namely, the date on which the results are finalised by the educational institution. It is only after that date that a student would be able to contact the educational institution to find out whether the student had satisfied the necessary requirements. The Minister stresses that the Migration Regulations do not impose or determine what is necessary to establish that an applicant has, in fact, satisfied the academic requirements of a course and that is clearly a matter for the education provider. That was not a matter that was satisfied on Mr Ali satisfying his final unit of study on 27 February 2018, according to the Minister.

41    It is entirely reasonable for the university to take the view that nothing is set in stone until that date, but it is not the answer to the question of analysis required by reference to the Migration Regulations. For the Tribunal to rely only upon only the opinion of the university would be to, in effect, act under dictation. This is not permissible. As McLure JA noted in Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 (at [24]-[25]):

24    There is no suggestion that the Acting Deputy Director was not duly authorised under s 15 of the Act to consider and determine the applicant’s application for an ETP. He being duly authorised, it is he who must consider and determine the application. He will commit a reviewable error if he acted under dictation: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54. The usual circumstance in which a person acts under dictation is where a third person has given a direction as to the manner of exercise of the power as in the Ansett Transport Industries case. However, at common law, dictation can also occur where a decision-maker felt obliged to decide a matter in a particular way because of another’s conclusions in relation to the matter even though the other person had given no direction that such an approach should be followed: Evans v Donaldson (1909) 9 CLR 140.

25    The rationale for the rule against dictation is the same as that which prohibits delegation of a decision-making power in the absence of express or implied authority to do so. Both involve an improper abdication of decision-making responsibility.

(Emphasis added and in original.)

42    A related passage from Romato was recently approved by Steward, Colvin and Abraham JJ in Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38; (2020) 275 FCR 413, where their Honours said (at [39]):

As can be seen from the PAM3 policy, the relevant part of it seeks to address reg 1.20. The policy is not directed to the discretion to be exercised in cl 820.221(4). It is unnecessary in resolving this appeal to address the ambit of the discretion in subcl (4). Whatever the content of the considerations to be taken into account in the exercise of the discretion in relation to the approval in cl 820.221(4), the PAM3 policy is not directed to that question. There is no reference to the content of any discretion, and no reference to reg 1.20J which places a limitation on the approval of sponsorship in relation to applications for a visa of this nature. Moreover, in so far as the PAM3 policy relates to establishing a nominated person as a sponsor, for the reasons above, this aspect of the PAM3 policy is inconsistent with the Regulations: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [29] per McLure P with Wallwork and Steytler JJ agreeing.

43    Similarly, in this instance, it is the Minister or, in turn, the Tribunal who is required to reach a state of satisfaction as to the completion date under s 65(1)(a)(ii) of the Migration Act, when read with reg 1.15F of the Migration Regulations. Clear words would be necessary to enable that state of satisfaction to be stipulated by the university. There are no such words present. The statutory criterion must be determined and applied by the Tribunal to the evidence before it. Whatever the university may say about its requirements and procedures, the task for the Tribunal is to apply the words of the Migration Regulations. This is especially so in the circumstances where the Migration Act and Regulations do, where necessary, expressly provide for a scheme for an external opinion to bind the Minister or a tribunal. It may be inferred that in the absence of such express scheme, in light of the state of the law, any external opinion of this nature will not be binding.

44    Section 505 of the Migration Act enables the Migration Regulations to prescribe when the Minister or tribunal, in deciding whether a visa applicant satisfies a criterion, must get an opinion from an external person. The Migration Regulations may also require the Minister or tribunal to take that opinion to be correct. That is so, for example, in the case of medical opinions (reg 2.25A) and opinions about family violence (reg 1.23(10)(c)). However, even in these instances, the courts have closely guarded the limits of this deeming function of an external person. The Minister or tribunal is ‘only entitled and obliged to take that opinion as correct if it is an opinion of the kind authorised by the [Migration] Regulations’ and ‘if the opinion is vitiated by error of law, the delegate errs in taking it as correct’: Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 per French, North and Merkel JJ (at [66] and [69]). See also Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1735; (2005) 195 FLR 203 and Han v Minister for Home Affairs [2019] FCA 331. Or as more colourfully observed by Katz J in Campbell v Metway Leasing Ltd [2001] FCA 1311; (2001) 188 ALR 100 (at [59]) ‘[t]here is too much of this damned deeming’. The power of the Tribunal to adopt the university’s view as the view the Tribunal must reach is not present in this regulation and is not readily found or casually applied.

45    While it will of course be incumbent on the Tribunal to have due regard to the evidence provided by the university, it must do more than simply look for words such as ‘completion date’ or similar and take this at face value. Such an approach ignores the Tribunal’s task which is to ascertain when completion occurs as that word is defined in the Migration Regulations, not just when the university is of the opinion that it occurs for its purposes. The primary judge (at [29]) is, with respect, correct that that the authorities are clear that the date of completion must be objectively ascertained, but this proposition is inconsistent with his Honour’s reasoning (at [22] and in Llanos at [21]) that completion does not occur until the university asserts that it occurs. Again, with respect, such a test is not an objective one and could lead to the rather perverse result that different institutions may consider completion to be perfected at different points in their internal process of evaluation, ratification and conferral of a degree/course of study.

46    In my view, the correct formulation of ‘completion’ is that expounded by Burchardt FM in Venkatesan at [15] and [17] which warrant repeating here, paying particular attention to his Honour’s use of the words ‘results’ and ‘credits’:

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.

…

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.

47    Mr Ali says the statutory criterion properly understood and applied to the evidence before the Tribunal resulted in the Tribunal and the primary judge wrongly deferring to the date identified by the University. Mr Ali’s argument is that the true time of completion under cl 485.231(3) is when an applicant has undertaken all study, course work and exams etc necessary for the degree and that work has been assessed as satisfactory by the university. Assessment by an applicant’s immediate academic supervisor with respect to each unit of study is said to be sufficient, such that completion occurs when a student’s final unit of study is assessed as satisfactory by the relevant academic supervisor.

48    Mr Ali contends such an approach is consistent with the language of cl 485.231(3), referring to ‘study for’ a degree, and the language of reg 1.15F(2), which refers to the ‘academic requirements’ of a degree. He contends and I accept, that each expression is comfortably met by study assessed as satisfactory and grounding the award of a degree. Neither expression is apt to embrace subsequent ratification which, while no doubt essential from the University’s perspective for confirming that the degree or qualification can be officially conferred, does not require any academic effort on the part of the student, nor actual evaluation of that effort. That evaluation has already been conducted by the academic supervisors for each unit. For the purposes of the regulations, there is no reason to consider ratification to be more than an administrative process, albeit an important one, necessary for the award of a degree.

49    To the extent that the primary judge considered (at [22]-[23]) that ratification of the course of study as a whole is consistent with what Cowdroy J said in Sapkota (at [25]) to the effect that ‘the final piece of assessment has to meet the institution’s requirements for progression through the course’, I consider this, with respect, to be an error. When Cowdroy J’s statement is read in the context of the whole sentence and paragraph in which it appears, it is clear his Honour is referring to the achievement of a satisfactory grade in the final unit (i.e., not a fail grade) when his Honour used the phrase ‘requirements of progression through the course’ (emphasis added.).

50    Thus, applying Venkatesan (at [17]), there was nothing more for Mr Ali to do of an academic nature after he sat his final exam for his final unit. Similarly, there was no further academic evaluation of Mr Ali after his academic supervisor had assessed him as having successfully completed his final unit of study. This clearly occurred prior to ratification on 5 March 2018. At the latest, it occurred in the early minutes of 27 February 2018.

51    The difficulty, in my view, with the Minister’s contention that completion occurs only when the university has satisfied itself at the time of ratification, is that that is precisely what had been achieved by the supervisor. There was no evidence at all as to what actually took place in the process of ratification, but the terminology itself tends to suggest that something unusual would have to arise for the Board of Examiners not to ratify the assessment given by the supervisor.

52    It was put in oral submissions by both parties that it would be conceivable that a board of examiners may not ratify a student’s course of study by reason of some form of academic misconduct, such as plagiarism or cheating. In this situation, Mr Ali submitted that the earlier purported completion would effectively be revoked by ratification. The Minister submitted this would have the result that completion was only provisional and could be displaced by a board of examiners, which was effectively a concession that completion did in fact occur at ratification. On reflection, I consider this hypothetical analysis to be a distraction. It could only arise in the narrow circumstance where academic misconduct is discovered after a student has completed their final unit, but before ratification occurs, otherwise it is doubtful that an applicant would be able to demonstrate satisfactory completion of all units in any event. To my mind, such a finding of academic misconduct would not ‘undo’ completion unless it was determined that the consequence was that the student had to engage in further study (i.e., re-take some units). But such a discovery of misconduct could equally arise after ratification had occurred and lead to the same dilemma. In any event, adequate protection is afforded by the requirements of cl 485.231(1) and cl 485.231(2), which must be met independently of cl 485.231(3). A student found to have engaged in academic misconduct would not have their qualification conferred or awarded until the matter was resolved. In no way was it suggested that this situation arose in the present case.

53    The Minister says that Mr Ali’s argument proceeds on an assumption that a supervisor will assess a relevant piece of work, but he argues there is no basis for that assumption. In my view quite to the contrary, it is clear that the publication of the pass mark by the academic supervisor is what triggers the subsequent formalisation of the ratification and conferral. It is the actual substance of the educational component, sitting the exam or submitting a thesis and being given a pass mark that constitutes completion of the academic requirements. There would appear to have been clear evidence in this case, with the University providing the letter on 28 February 2018 advising that Mr Ali ‘requires a total of 0 credit points in order to complete the above course’. It was an error on the part of both the Tribunal and the primary judge to ignore this statement and rely only on the subsequent statement by the University that completion, for its purposes, would occur on 5 March 2018. That was not the date of completion within the meaning of that word under reg 1.15F which is expressly directed to satisfaction of academic requirements only, not the subsequent administrative steps taken by the University: Venkatesan (at [15]); and Sapkota (at [24]).

54    Additionally, Mr Ali contends that his approach prefers substance over form, which, importantly, the note to reg 1.15(2) suggests was intended. I accept this submission. Equally, it supports good administration in the sense that an applicant may seek a visa as soon as the applicant has effectively completed the degree. An applicant who moves quickly, rather than slowly, is rewarded. Continuity of visas is facilitated because an applicant may seek a new visa as soon as his or her study is completed, rather than awaiting processing, during which time his or her student visa may expire. This, indeed, would have occurred in this very case and cannot be consistent with the intention of the statutory regime.

55    The more difficult argument for Mr Ali is that all the requirements for completion had occurred by 26 February 2018, rather than 27 February 2018. In this regard, the Minister argues that as 27 February 2018 was the date of publication by the University of Mr Ali’s satisfaction of his final unit of study, that is the earliest possible completion date. The Minister argues that 27 February 2018 is the only date on which Mr Ali’s satisfaction of his academic requirements could have been made publicly available. The point of satisfaction, the Minister argues, by the educational institution must be objectively ascertainable. Whether that be by the publication of results or by the Board of Examiners ratifying the matter, or some other event, it must be able to be objectively viewed. What was not sufficient, in the view of the Minister, would be for the matter to be remitted to ask the Tribunal to engage in some form of speculation and to arrive at a conclusion that has no objective verification.

56    The Minister contends that Mr Ali’s submission that by virtue of the actual chronological time when the results were published, it must be that the case that the decision was made the previous day at the latest disregards the University’s own answer as to when the relevant course of completed. The Minister says it is not surprising that a decision or result is identified as being made when it is published. It would not be open to conclude that an education provider completed a relevant assessment at a date earlier than that identified by the provider as being the date of publication, the Minister argues.

57    In my view, this submission suffers from the same difficulty as the Tribunal relying upon the University’s opinion as to the date of completion being the date of ratification of 5 March 2018. This approach simply draws attention to a statement of the University and relies on it as being conclusive of the view to be reached by the Tribunal. In any event, as Mr Ali contends, that submission should fail for overstating the significance of the publication date. Properly understood, the statutory criteria as analysed in Sapkota asked the question whether an applicant has undertaken all study necessary for the degree and that study has been assessed as satisfactory by the university. The date of publication of results could well indicate that an applicant’s study has been assessed as satisfactory. However, as Sapkota demonstrates, this does not have the effect that publication of results is the only point in time from which it can be established that an applicant’s study has ‘passed muster’.

58    Another point in time may well arise from material before the Tribunal. In this case, the Tribunal and the Federal Circuit Court decided the correct date was 5 March 2018, which, in my view was incorrect. If it had decided in the alternative, which it did not, that 27 February 2018 was the correct date, then it could only do so by the same reasoning of relying, without more, upon the actual date of publication by the University, rather than assessing what the regulation means. The decision-maker is not, in reaching its state of satisfaction as to the point in time of completion, confined to the view of the university and should not displace its own state of satisfaction by the view expressed by the university. It should rely on the evidence before it, including sensible or ready inferences which should be drawn from the information. It is not necessary to conclude in this appeal what the date of completion was because it is sufficient to note that the Tribunal has approached its task on a misunderstanding of the statutory criterion and incorrectly reached the date of 5 March 2018. However, as Mr Ali argues, the ready inference in a case where results are published in the earlier minutes of a particular day is that the results were assessed as being satisfactory no later than the previous day. It may be that university staff are working at midnight on such matters, but it is not at all uncommon for courts to infer in the absence of evidence to the contrary, that business activities are conducted within business hours.

59    Mr Ali is correct that the process adopted in the Tribunal and the Federal Circuit Court and in the Minister’s argument is to shift attention from the assessment of the final unit to the processing of course completion. In doing so, there is a departure from the language of Sapkota (at [24]) and a departure from the plain words of the Migration Regulations. The common sense and correct, with respect, construction flowing from Sapkota is that the decision-maker should be having regard to when ‘the student submit[ed] all relevant items for assessment to the education provider’ and ‘the education provider assessing these items and determining for itself whether the student has in fact achieved the academic result’.

60    The evidence in this case is that not only was Mr Ali’s final academic result released in the early minutes of 27 February 2018, he was also informed by his academic supervisor for his final until that he had passed the unit on the same day he completed his exam. In these circumstances, and in light of the reasons of this judgment, it cannot be concluded that any error with respect to the completion was immaterial because the earliest possible date was 27 February 2018. I do not consider, with respect, that either the Tribunal or the primary judge properly engaged with either of these aspects of the case.

CONCLUSION

61    It is not readily apparent why this dispute has needed to travel this distance. Nonetheless, the appeal will be allowed with costs.

Associate:

Dated:    27 October 2021