When should a 485 graduate visa be lodged? The new world after Ali's case.

Introduction

The clocks have gone forward, the sun is shining and university students across the country are completing their studies. When the exams and the results are out, many students could well have a glorious summer before they graduate and take on the world. However, some students face one final and critically important test: resolving their visa status.

The Australian visa system, at least initially, makes this relatively straightforward. There is a popular, and not especially demanding, visa called the Subclass 485 Temporary Graduate visa in the Post Study Work stream (485 visa). The main requirement is that the applicant, while present in Australia on a student visa, recently completed an Australian university degree.

You might think this requirement would easily be met by a student who has undertaken all necessary assessment tasks for their degree and received satisfactory results. However, you would be wrong. The question has been litigated with surprising frequency in the Federal Circuit Court and the Federal Court. Nilesh Nandan of MyVisa Lawyers, instructing Oliver Jones of Four Selborne Chambers, has recently succeeded before McKerracher J of the Federal Court in clarifying the law in this area. The case is?Ali v Minister for Immigration?[2021] FCA 1311.

Statutory scheme

The?Migration Regulations 1994?(Cth) prescribe the criteria for the 485 visa. They are very particular about the point in time at which completion of the university degree must occur. The Regulations call this "Australian study requirement" and it must be satisfied "in the period of 6 months immediately before the day the application was made".

For better or worse, the language is very specific. A person must complete their degree within the 6 months ending the day before they apply for the 485 visa. It will not be good enough if they completed their degree too long ago, ie more than 6 months before the visa application. However, it will be just as fatal if they "jump the gun" and apply before their degree is over. The visa applicant has to be in the "Goldilocks zone" - wait too long after study and what would otherwise be a pretty seamless visa will evaporate. Move too quickly and the same result will transpire. As the Federal Circuit has settled on a previous occasion, even the very day a person finishes their degree is insufficient. They will only fall within "the 6 months ending the day before" if they wait until the day after completion to seek the 485 visa (Mahohoma v Minister for Immigration?[2020] FCCA 2206 at [51] per Judge Kendall).

No doubt the Governor-General, advised by the Minister, had good reasons for framing the Regulation in this way. However, the strictness of the "Goldilocks zone", and its capacity to penalise both the laggardly and the hasty, has led to litigation over precisely when a degree has been completed under the Regulations.

Completion of a degree

The Regulations are a trifle vague in their definition of completion of a degree. Regulation 1.15(2) states that "completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award". There's also a note to this definition in the Regulations, which tries to help with the following observation:

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.

So gown, scarf, mortarboard and testamur aren't necessary. However, as will be seen, there's still much room for argument.

A long-standing test

Over a decade ago, Burchardt FM in?Venkatesan v Minister for Immigration?[2008] FMCA 409; 216 FLR 356 invoked an essential element in statutory interpretation - common sense. In a few short words, the good judge seemed to reduce the expression "having met the academic requirements" to a workable test. His Honour said:

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 200[5]. 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.

So clear, so simple. Have you done the study? Have your efforts been assessed as satisfactory? At the very moment you can say yes to both questions, you have completed your degree. Nothing earlier will suffice. Nothing later matters. Yet, for reasons which some may find elusive, the point would be litigated for the next 13 years.

Application of test in?Venkatesan

A number of cases concerned applicants for the 485 visa who had moved too slowly. In?Venkatesan?itself, the applicant had sought the 485 visa on 13 February 2006. So he had to have completed his degree between 12 August 2005 and 12 February 2006. He'd actually received his final results on 2 August 2005. The delay in applying for the 485 visa left him relying on the fact that he gained his degree partly in reliance on credit transfers from another institution and those transfers had not been formally recorded until 13 September. Burchardt FM was unmoved - this was an administrative step. The Applicant had completed his degree by 2 August 2005.

Elaboration in?Sapkota

Another case outside the Goldilocks zone for delay was?Sapkota v Minister for Immigration and Citizenship?[2012] FCA 981. The application for the 485 visa was made on 1 May 2009. So the degree had to be completed?between 31 October 2008 and 30 April 2009. The applicant's final results had been published on 21 October 2008. However, there was evidence that the University had internally assessed the applicant's performance as satisfactory, well before the publication date, on 26 September 2008. On the other hand, the Applicant had received a notification of degree completion in November 2008.

Judges of a higher tribunal often supply eloquence and insight which forever improve the sparse words of a previous case in a lower court. On other occasions, through no fault of their own, such judges may do more harm than good. This is what happened in?Sapkota. Under the perhaps workmanlike dictum of?Venkatesan, the result is clear. The notification of November 2008 was administrative. The applicant had possibly completed his study satisfactorily on 26 September 2008 and had certainly done so by 21 October 2008. Either way, he had applied too late for the 485 visa.

In?Sapkota, Cowdroy J referred to?Venkatesan?with approval. His Honour accepted that completion did not embrace administrative steps leading to graduation. The focus was when the "final grades for the course are awarded" (at [23]). His Honour restated the test as follows:

24. … 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.

At this point, despite the use of different words, Cowdroy J had not distracted attention from the essence of?Venkatesan. However, potential ambiguity crept in when his Honour applied the test. His Honour suggested that, in the present case,?Venkatesan?was satisfied by publication of final results on 21 October 2008. This was because (at [25]) "publication of such result[s] is in effect a statement from the institution that the student has completed all of the necessary components for the degree to be awarded".

However, Cowdroy J also seemed (at [26]) to endorse internal assessment on 26 September 2008 as 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". Despite what his Honour had earlier said about publication, he at this point observed (at [26]) that the "date when the education institution informs the student via letter, email or otherwise of the student's results is not relevant".

Deviation in?Llanos

The ambiguity did not matter in?Sapkota?itself. Both the publication date and the internal assessment were at the wrong time for the applicant in that case. However, brevity and simplicity of?Venkatesan?had been replaced with more involved propositions. There was now possible tension between the dates of publication and internal assessment in a case where the difference would matter.?Sapkota?also emphasised that much was determined by the university itself, which might suggest reliance on the university's own statements as to the completion date.

And so we get to?Llanos v Minister for Immigration?[2018] FCCA 2148. This was a case where the applicant fell outside the Goldilocks zone for moving too quickly. He applied for the visa on 30 June 2016. The applicant had completed his study for the qualification and his efforts had been assessed as satisfactory at least internally by 27 June 2016, which was within time. However, the results had been ratified by the faculty academic board on 4 July 2016 and published on 6 July 2016, with either date taking the applicant out of time.

One would have thought that?Venkatesan?would favour 27 June 2016. Nonetheless, Judge Vasta purported to apply?Venkatesan?and?Sapkota?to render 4 July 2016 the critical date. His Honour's reasoning was (at [21]) that the degree was "not completed until the education provider says that it is completed". In any event, there were other reasons why the applicant failed in?Llanos.

Clarification in?Ali

The facts in?Ali?were somewhat similar to?Llanos. The applicant was prompt and diligent. His final results were published in the earliest minutes of 27 February 2018. At 1.09 am that same day, he lodged an application for the 485 visa. On 5 March 2018, the Board of Examiners ratified the applicant's completion of his degree. When asked by the Tribunal, the applicant's university identified 5 March 2018 as the completion date. The Tribunal relied on that date to reject the applicant for completing his degree after rather than before the visa application date.

Ali?went to trial before Judge Vasta, who applied?Llanos?in favour of 5 March 2018. The applicant appealed and the case came on for hearing before Justice McKerracher. His Honour reasoned as follows. Judge Vasta, in?Llanos?and the present case, had been wrong to defer to the date identified by the university. This was, essentially, treating the opinion of the university as conclusive. There were special provisions enabling this to occur elsewhere in the Regulations. However, it was otherwise prohibited under the common law rule against acting under dictation (at [41]-[45]).

The task instead was to apply the regulations according to their meaning. For this purpose, McKerracher J re-affirmed?Venkatesan?as the correct test (at [46]). His Honour drew upon a specific part of Cowdroy J's reasons in?Sapkota, observing (at [59]):

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'.

Cowdroy J's reliance in?Sapkota?on the publication date was clarified by McKerracher J. The publication date could be evidence of a time by which assessment had taken place. However, publication was only evidence and not a critical date in its own right. An earlier date could on the evidence arise (at [57]-[58]).

Applying this test showed the error of the Tribunal and the primary judge. It was realistically possible that the applicant's study had been internally assessed as satisfactory before 27 February 2018, with automated publication in the earliest minutes of that day reflecting assessment no later than business hours on 26 February 2018 (at [58] and [60]). Ratification such as that occurring on 5 March 2018 was administrative (at [48]).

Future cases?

McKerracher J was mindful that his approach favoured an applicant who moved quickly rather than slowly (at [54]). However, it should not be inferred that this was just a case of "clean hands" or sympathetic facts. His Honour emphasised the meaning of the statutory provisions and the Tribunal's task being to apply that meaning, whatever the factual context or institutional view. The essence of?Venkatesan?now unequivocally reigns - has the Applicant completed all study and has that study been marked satisfactory? At the earliest moment when this occurs, the Applicant will have completed his degree for the purposes of applying for the 485 visa.

McKerracher J noted discussion by the parties as to what might happen if an initial assessment of study as satisfactory were later displaced for plagiarism or cheating. His Honour consider this a distraction, noting that in any event an applicant in that position would not be able to fulfil other visa criteria (at [52]). It seems, therefore, that the outcome of ratification, even in the unlikely event that assessment is displaced, will not alter the analysis. It will at most adversely impact on the applicant by means of separate statutory provisions.

The ultimate lesson for applicants seeking the 485 visa and their professional advisers seems to be filing the application one day after final results become known. This may mean the day after publication of the results. However, if the applicant discovers his final results by other means before publication takes place, the application may need to be filed the day after that discovery.

Some creative scenarios

It seems there is always going to be some risk that an applicant knows nothing of his or her results until publication but evidence later emerges of internal assessment being completed on a date prior to publication. This should, as McKerracher J seems to appreciate, work against a person of prevarication rather than promptitude.

Let us demonstrate the point by toying with the facts of?Ali.?The applicant received his final results in the earliest minutes of 27 February 2018. Assessment took place by no later than 26 February 2018. If the applicant had waited until the day after publication to apply for the 485 visa, ie 28 February 2018, there would be no difficulty. Whether completion took place on 26 or 27 February would not matter. It occurred within the period of 6 months ending on the day before he applied for the visa.

Now imagine that the applicant, after receiving his final results on 27 February 2018, waited until 28 August 2018 to apply for the visa. This is probably unlikely for other reasons, but is illustrative for present purposes. If the date of publication were relied upon, the applicant would, by a whisker, satisfy the time requirement. He or she would have completed his degree at the very beginning of the 6 month period. However, if the Tribunal concluded on the evidence that assessment occurred before publication, the applicant would be out of time. The distinction between assessment and publication seems more likely, then, to damage the slow applicant. Vous l'avez voulu?

Conclusion

• An applicant for a 485 visa in the work study stream must have completed their degree within the 6 months ending the day before the visa application is made;
• Completion of a degree refers to the applicant having undertaken all necessary study for the degree and that study having been assessed as satisfactory;
• This refers to the earliest date of assessment. It is not necessarily the date of publication and is certainly not later processing or ratification of assessment within the university;
• Applicants should be quick but not hasty. They should not be slow. They should apply the day after the publication of results or the day after an earlier date on which the results become known.

Oliver Jones, Barrister, Four Selbourne

Nilesh Nandan, Lawyer, MyVisa Lawyers

Liability limited by a scheme approved under Professional Standards Legislation